Earle & Earle (No 2) - [2020] FamCA 1148

FAMILY COURT OF AUSTRALIA

EARLE & EARLE (NO. 2)

[2020] FamCA 1148

FAMILY LAW – CHILDREN – Interim parenting – Where updated report of court appointed expert released to the parties in Court –Where the court appointed expert expresses serious concerns as to risk of harm posed to the children in the mother’s care while the mother’s mental illness is untreated – Where the father then made an oral application to vary previous interim orders which provided, amongst other things, that the children live with the mother –Where the father contends that the mother’s mental condition causes such impairments in her parenting capacity that the children are exposed to an unacceptable risk of harm in her primary care – Orders made largely as sought by the father and supported by the Independent Children’s Lawyer.

Family Law Act 1975 (Cth)

Deiter & Deiter [2011] FamCAFC 82
Earle & Earle [2020] FamCA 272
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Earle

RESPONDENT:

Ms Earle

INDEPENDENT CHILDREN’S LAWYER:

Mr Samuels

FILE NUMBER:

PAC

2016

2018

DATE DELIVERED:

14 October 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Raltson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Ardino

SOLICITOR FOR THE RESPONDENT:

Ex tempore Orders

All earlier orders in relation to parental responsibility, where the children are to live and spending time with the father are discharged.
That the Father have sole parental responsibility for medical and education decisions for the children (namely Y born 7 … 2016 ("Y") and X born … 2017 ("X")).
That the children live with the Father.
That the children spend supervised time with the Mother for a minimum of 2 hours each week (and a maximum of 2 occasions of 2 hours each week), on a day subject to the availability of the contact service appointed pursuant to Orders 5(a) below.
The for the purpose of Order 4 above;
(a)       Time will be supervised by an agency agreed to between the parties in writing and in absence of agreement by D Contact Service;
(b)
(c)       Time will occur at a public location in the E Region in NSW in accordance with the recommendations of the contact service nominated pursuant to Order 5(a) above;
(d)       That costs of supervision be borne by the parties equally.
That in addition to Order 4 above the father facilitate video/phone contact between the mother and the children on each day they are otherwise not spending time with the mother. On one occasion between 6pm and 8pm for no more than a half hour or at a time otherwise as agreed between the mother and the father in writing.
That for the purpose of Orders 4 to 6 above, the Mother be restrained from bringing the children into contact with Mr B or Mr C, and allowing Mr B or Mr C from speaking with the children and attending contact.
Not pressed
That within 7 days of the date of these Orders, the Father shall:
(a)       Do all acts and things necessary to arrange an appointment for the child Y with the Local Health District Child Development Service (or such service as recommended by Local Health District Child Development Service), and thereafter ensure Y is available for and participates in any and all assessments recommended by Dr F (Paediatrician) or any other paediatrician that undertakes any assessment of Y;
(b)       Obtain Assessments for Speech Therapy and Occupational Therapy for Y (by the Local Health District or referred by the Local Health District);
(c)       Do all acts and things necessary to enrol the children in childcare in the E Region; and
(d)       Do all acts and things necessary to obtain a referral to a Paediatrician in the E Region and child psychologist for the children;
(e)       Provide copies of any assessment obtained in accordance with Order 9(a) and (b) above.
That the Father communicate to the Mother in writing, not less than once weekly, updates about the children’s wellbeing, and information about medical treatment and recommendations made by relevant practitioners that see the children from time to time.

Notation:

A)   For the purpose of Orders 9 and 10 above, the Father has made preliminary enquiries with the children’s treating General Practitioner, Dr G from the H General Practice, and Dr G has recommended that appointments be made for the children to attend upon:
a.     Dr J, Paediatrician, who specialises in children with developmental issues and who practices out of K Hospital in Suburb N NSW; and
b.     S Services in Suburb N, who have specialised child psychologists employed, and who have availability to see both children from mid-November 2020.

It is the Father’s intention to obtain referrals from Dr G to the 2 practitioners/practices noted above, or to other suitable practitioners in the E Region if necessary and obtain appointments as soon as practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Earle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2016 of 2018

MR EARLE

Applicant

And

MS EARLE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are engaged in proceedings in relation to their property interests and the future arrangements for their two children. These proceedings have been bifurcated – that is, separated – and the parenting proceedings which have the greatest urgency are listed for final trial in about five weeks’ time.

Background

Upon separation after a five year marriage in about February 2018, the mother left the former family home and took with her the parties’ children, a son then aged about two and their daughter, an infant of a few months.
The father commenced proceedings in the Federal Circuit Court in May 2018, and in July 2018 orders were made with the consent of the parties for interim parenting arrangements which provided for the children to live with the mother and have daytime contact with the father twice each week.
In December 2018 the proceedings were transferred to this court and subsequently an ICL was appointed.
The parties and the children met with a family consultant for the purposes of the Child Responsive Program in March 2019, and at the time of this meeting the mother had unilaterally ceased the father’s time with the children for just over a month, as she had concerns about the physical abuse of the son in the father’s care.
When seen by the family consultant in March 2019, the father proposed that the children live with him and spend substantial and significant time with the mother and that he exercise sole parental responsibility for the children. It was at that time and remains his case that the children may be at risk of harm in the mother’s care due to difficulties with her mental health and also due to the presence of a maternal cousin in her household, who the father maintained posed a risk for the children.
It was then the mother’s proposal that the children live with her and spend supervised time only with the father. She had raised questions which I understand to be current about whether the father was using legal processes as a form of control over her. She also had at that time concerns about potential risks posed by the paternal grandfather.
When interviewed by the family consultant, the father said that he did not have any concerns in relation to the mother’s mental health when they were in a relationship, and that his concern about this issue first arose in September 2018 when the mother first accused him of speaking with police regarding their investigation of the death of the maternal grandfather, who was killed 30 years ago by persons unknown. The father reported that the mother indicated she believed he was working with police and had to shut down all communication with him.
The mother denied to the family consultant that she was experiencing mental health difficulties, but told the family consultant that she believed the Police, who investigated the death of her father over 30 years ago, are influencing the family law proceedings, and that she has evidence the father has been in contact with police when he says he has not.
At that stage, neither parent expressed to the family consultant any concerns regarding the children’s safety or wellbeing in the other parent’s care during the relationship, but the mother reported there had been incidents at the beginning of 2019 which led her to withhold the children from spending time with the father on the basis that he posed a risk of physical harm to the children.
At that time, the father raised a concern about the children’s exposure to the mother’s paranoid behaviours and mental health concerns of the adults in the household in which they live, or were associated with.
In her Memorandum to Court, the family consultant expressed some concerns about the son’s hyperactivity, speech development and social development, and suggested that a paediatrician may be able to assist with an assessment of this child, and that the court may be assisted by a report from an expert with suitable qualifications in relation to mental health.
In March 2019 a psychiatrist, (“the expert”), was appointed to provide an expert opinion in the proceedings.
In April 2019 interim orders were made following a hearing by a Senior Registrar that the children live with the mother and spend time with the father one weeknight per week, for a full weekend each alternate week and for a 24 hour period each other alternate weekend.
The parties were first seen by the expert psychiatrist in June 2019.
From at least July 2019 the mother’s brother (“the maternal uncle”) also began involving himself in the proceedings by sending correspondence to the father’s solicitors accusing them of corruption. The mother has a close relationship with this maternal uncle, and at that time relied upon him for support and lived in his property with the children and a maternal cousin.
Later in July 2019, the mother refused to make the children available for their time with the father, and made complaints about the care arrangements for the children to a number of agencies, including the Department – formerly known as Family and Community Services (“the Department”) and local police.
Throughout July and August 2019 the maternal uncle sent emails to a wide range of parties accusing the father of child abuse and corruption and having improper influence over the ICL and court appointed expert. These documents also allege that a complaint of physical abuse against the paternal grandfather was not investigated by police due to the father’s contacts.
From August 2019 the mother also sent emails to a wide range of people including a State Premier, Commissioner of Police and the Police Minister making similar claims about corrupt activity in connection with the investigation of the maternal grandfather’s death.
From July to October 2019 the mother took the children, and in particular the son, to a range of medical appointments with various health professionals without the knowledge of the father. On occasions the mother did not make one or both of the children available for time with the father due to claimed health concerns.
The expert’s report dated 7 November 2019 was released to the parties a short time later. This is the document to which I will return at greater length, but it suffices to say that while the expert felt the mother did not then meet the criteria for a delusional disorder, the expert noted that the mother took a “paranoid stance” in relation to the father’s involvement with police.
The expert considered that the mother’s belief that the father was involved in a conspiracy to be a consequence of the mother’s past experiences incorporated into her world view which appeared to be shared by the maternal uncle, rather than a delusional disorder or shared delusional disorder.
At that time the expert was of the opinion that both the mother and father were in good mental health, and opined that should their mental health remain stable, their capacity to care for the children is likely to remain sound. The expert was also of the opinion that the son had a probable diagnosis of Autism Spectrum Disorder, and that this child’s presentation also met the diagnostic criteria for Attention Deficit Hyperactivity Disorder, combined type of moderate severity.
In general the expert was of the view at the time that neither of the children were at risk of physical or psychological harm in the household of the mother or the father. She recommended that the parents share parental responsibility, that the children initially continue to live primarily with the mother, but that they be supported to work towards living with both parents on a week about arrangement, and that this be facilitated in a gradual manner with the aim being to reach a shared and equal time arrangement between the parents in about 12-18 months in the future.
In November and December 2019 the mother withheld the son from the father on two occasions rather than making him available to spend time with the father on the basis that the child was unwell. On one such occasion she presented the son to the hospital but he was not admitted, and it was considered by hospital staff that he most likely had viral gastroenteritis.
In mid-December 2019 the mother began complaining to the father in text messages and emails that the children had been experiencing diarrhoea after spending time with him on recent occasions, and in one email she wrote “I strongly suspect you are feeding them laxatives”.
The mother presented the son to hospital on a second occasion in December 2019 and was accompanied by her cousin who is described in hospital records as expressing agitated behaviour, pressured speech, intimidating nature “and was ‘requesting blood tests for laxatives and stated that ‘the father must be feeding laxatives’”. The records also indicate that the mother expressed the same and “gastro symptoms have occurred as the ex-husband has been giving the children laxatives” to make them sick, and requested a blood test to check for laxatives in the blood.
In the early months of 2020 there were further occasions on which the mother withheld the son from the father, due to claimed health issues.
On 13 March 2020 the mother filed an Application in the Case seeking a wide range of orders including that a vast list of third parties file affidavits in the proceedings relating to their alleged corrupt activity, that the ICL be dismissed, and that orders providing for the father’s time with the children be suspended.
On 28 March 2020 the father did not return the children to the mother when this was due to occur following his time with them, as he claimed to have concerns about the safety and wellbeing of the children in the mother’s care, particularly arising from recent events which he considered showed a deterioration in her mental state, which he contended meant she posed a risk of harm to the children.
On 3 April 2020 the father filed a Response to the mother’s Application in the Case seeking orders for the children to remain in his care, and the mother filed an application for a Recovery Order on the same day.

14 April 2020 Interim Hearing

On 14 April 2020 there was a hearing primarily in relation to the Recovery Order, and the father’s application to vary the interim parenting orders, and some of the other orders sought by the mother in her Application in the Case were also dealt with.
At the 14 April 2020 hearing, the mother sought a short suspension of the father’s time and advanced a case that it’s in the children’s best interests that they be returned to her primary care and that the interim arrangements for time with the father be revisited as soon as possible. The father sought interim orders that the children live with him and spend supervised time with the mother each Sunday for a period of three hours, and also sought that a further assessment and updated report be obtained from the expert appointed in the proceedings.
For reasons given when the judgment was delivered on 23 April 2020, I considered that proper orders would see the children immediately returned to the care of the mother, and that if this did not occur that a Recovery Order issue, on condition that the mother’s cousin immediately vacate the mother’s household, and that she be restrained from allowing this cousin and the maternal uncle to play any role in caring for the children.
The father was restrained from withholding the children further from the mother, and ordered to comply otherwise with the interim orders then in place. There were various other ancillary orders, including that the mother take all steps to ensure that the children are enrolled in a childcare centre as agreed between the parties, and that she facilitate the children attending such a centre subject to restrictions in place as a result of the COVID-19 crisis. I also made orders to facilitate the urgent preparation of an updated report from the court appointed expert.
At the interim hearing in April 2020 the father did not contend that the children did not receive a benefit from having a meaningful relationship with their mother, but contended that the need to protect the children from harm required that this time with her be limited and supervised. It was his contention at that time that the children were at an unacceptable risk of psychological harm in the mother’s care as a result of her reduced capacity to meet the needs of the children due to a deterioration in her mental state. In particular, he contended that the delusional beliefs held by the mother and shared by the maternal cousin and maternal uncle, who were then involved in the care of the children, formed the basis of this reduced parental capacity.
At the interim hearing in April 2020 the father relied in particular upon the opinion of the expert, which for the reasons given I considered as weighty, even though it was untested. In that report, the expert opined that the mother’s belief that the father had been conspiring with police and others, which she appeared to the expert to hold with a firm and unshakeable conviction, may possibly be delusional in nature. In submitting that a Recovery Order should be made, and that it was in the children’s best interests to remain living primarily with her, the mother attached particular weight to the fact that she had been the children’s primary carer throughout their lives. While the mother did not specifically refer to the expert’s opinion, the expert had expressed the view that the son in particular would be likely to struggle with the sudden change in his parenting arrangement as proposed by the father.
At the April interim hearing it was essentially the father’s case that the deterioration in the mother’s mental state occurred after the expert’s first assessment. He relied in particular on the contents of the mother’s affidavit in support of her Application in the Case of 13 March 2020, and the orders sought in that Application, which he contended raised such concerns about the mother’s mental state that a real risk of harm to the children would arise in the mother’s primary care that required that the time with her be limited and supervised.
As explained in the interim judgment, I accepted the father’s submission that the nature of the orders sought by the mother at that time of themselves was a matter of concern, and in my view likely to cause the expert to revise the view that the mother does not have a delusional disorder. I also noted that aspects of the evidence indicated that similar views were held by the maternal uncle who at that time had some significant involvement in the care of the children and support of the mother, which also may cause the expert to revisit the possibility that the mother and maternal uncle share a delusional disorder.

I noted, however, that there was little in the orders sought by the mother at that time or her affidavit in support or the documents filed that indicated a clear connection between further escalating deterioration that would impair her capacity to care for the children or pose a risk of harm to them.

The expert’s supplementary report

The current application for a variation of the interim orders was precipitated by the release of the supplementary report of the expert. In her report dated 2 October 2020 received at the Court four days later, the expert recommended that due to the opinion expressed, to which I will return, that the report not be released to the parties in the usual manner, as she considered it likely to precipitate a decompensation in the mother’s mental state, which may present a potential risk to the children.
Against these recommendations, arrangements were made for a court event at which the parties were to attend in person today, and the updated report of the expert subsequently marked as exhibit 3 was released to the parties.

The application

Subsequently today, the father was granted leave, and the grant of leave was not opposed, to make an oral application for variation of the parenting orders. In summary, the father seeks orders that he have sole parental responsibility for the children with respect to medical and educational decisions, that earlier orders with respect to the children’s living arrangements and spending time with the other parent be discharged and that the children live with him and spend supervised time with the mother for a minimum of two hours each week and a maximum of two occasions of two hours, as well as video or phone contact on the days where there is to be no time spent with the mother.
The father also proposes orders that facilitate the son receiving particularised paediatric speech therapy and occupational therapy assessments and treatment, and for the children to be enrolled in childcare or an early learning centre and for engagement with a child psychologist. The father had also proposed orders requiring the mother to undergo assessment and treatment by a psychiatrist, but once it became apparent that the mother opposed all orders sought by the father, these last mentioned orders were not pressed.
The Independent Children’s Lawyer (“ICL”) supports the father’s application and considers that the proposed orders are in the best interests of the children. The mother opposes the father’s application in its entirety.

The law and Discussion

In determining this application for interim orders, I adopt and incorporate all of the paragraphs in my interim judgment dated 23 April 2020[1] in relation to the law, in particular, that the court may make such parenting orders as it thinks proper, that the Court must regard the best interests of the child as the paramount consideration, and that the principles in relation to parenting and interim parenting proceedings be followed as set out in Goode & Goode[2]. In the interim judgment, I also referred to the relevant authorities which indicate that when making an interim order, a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children.
[1]Earle & Earle [2020] FamCA 272.
[2] (2006) FLC 93-286.
Clearly, the application under consideration does involve some disadvantages which may need to be endured by the children, because if made the children would move from a settled arrangement that has been in place for some years to a completely new arrangement of living with the father and spending limited and supervised time only with the mother. It is to be noted, however, that the final hearing in this matter is fixed to commence 9 November, in other words in about five weeks’ time.
In applying the applicable law to this application, I repeat the earlier observations in the interim judgment about the primary considerations, and in particular to the meaning given to the expression “meaningful relationship”. As earlier stated, the authorities hold that the phrase “meaningful relationship” is to be interpreted in a qualitative rather than quantitative sense, as a relationship which is “important” or “significant”. The proposed orders of the father will significantly reduce the amount of time the children will spend in the case of the mother, but those orders will nonetheless still foster the children having a meaningful relationship with both parents.
The gravamen of the father’s application is that most weight should be attached to the need to protect the children from harm in the mother’s household. Once again, as was the case in the earlier application in April 2020, it is his main contention that the mother’s mental condition causes such impairments in her parenting capacity that the children are exposed to an unacceptable risk of harm in her primary care, and the only way to satisfactorily mitigate that harm is to limit the time the children spend with her and impose supervision. There is also some overlap between the contentions based on the additional consideration relating to parental capacity and the primary consideration of the need to protect the children from physical or psychological harm arising from being subjected to or exposed to abuse or neglect.
With respect to the risk of harm posed by the mother conceptualised both as the primary consideration and the additional consideration, the father relies upon the opinion of the expert contained in the supplementary report and on a number of the undisputed facts.
In particular, there is ultimately no dispute between the parties, (though there was significant resistance from the mother in conceding these matters) that the son was withdrawn by the mother from the childcare centre or early learning centre in which he was enrolled on two occasions this year, and that the daughter has also been withdrawn from the centre, and that neither child has attended any centre since July 2020.
This is a matter of some significance as I had attached some weight, for the reasons given in the April 2020 interim judgment, to the fact that the mother had withdrawn the son from the centre earlier this year, and prior to the interim hearing, without any satisfactory explanation, and as an order was made that she take all steps to ensure that the children are enrolled in a childcare centre as agreed between the parties and is to facilitate the children attending such childcare centre subject to restrictions as a result of the COVID-19 crisis. It is agreed between the parties that both children were enrolled in a centre as agreed between the parties, but that they had been absent from that centre from mid July 2020. There is also no dispute that the children are no longer enrolled in the centre, and that they have not been enrolled in any other centre.
There was also considerable attention given in the interim judgment to the lack of appropriate attention given by both parents to having the son assessed and receive proper treatment with respect to various conditions, including those that had been noted by the expert in the first report. The expert was somewhat critical of both parents in respect to this lack of action, but expressed particular concern about the fact that the mother had not permitted the child to receive proper assessments by a paediatrician and in relation to speech therapy and occupational therapy.
Although the mother through her counsel challenged the statements from various health practitioners in relation to these assessments contained in emails between medical staff, including the specialist paediatrician and the ICL, the mother ultimately conceded that it was correct that the appropriate service was unable to complete a diagnostic assessment for the son, including paediatric speech therapy and occupational therapy as she did not want that to proceed. Although the mother was obviously not in a position to adduce any evidence by way of an affidavit in today’s application, she did tender a bundle of documents, and in the course of submissions made on her behalf identified two documents which she contended supported her having arranged assessments from other appropriate health professionals for the son. Upon examination, however, the identified documents had nothing to do with this contention.
In addition to these undisputed facts, the father relies and the ICL supports this reliance, upon the expert’s supplementary report to a great extent. The mother’s lawyer submits that no weight should be attached to the expert opinion in the second report on the basis that the opinions expressed in it are prejudicial, that the expert has not made a proper diagnosis, and that the expert was not provided with all relevant information, and that when such information is given to the expert, she may change her opinion.
I cannot and do not make any positive findings, and in particular do not make a positive finding that the mother is delusional or does suffer from schizophrenia as the expert now opines. However, I am required to make an assessment of risk in interim applications such as this, and in this regard I refer to Full Court authorities in cases such as Deiter & Deiter[3], George & George[4] and SS & AH[5].
[3] [2011] FamCAFC 82.
[4][2013] FamCAFC 182.
[5] [2010] FamCAFC 13.
As stated in the previous interim judgment in April 2020, I am required to “weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected”.
In considering the expert’s opinion I am mindful and consider it weighty that it has not been tested under cross-examination, and I accept the submission that when given further information, the expert may change her opinion. However, I note that the expert has appropriate qualifications, has provided two reports, and the earlier does not appear to be the subject of significant dispute by the mother, and that she attached particular weight to the undisputed facts and to the mother’s presentation when assessed on each occasion.
In these circumstances, I cannot consider it likely that the expert will change her opinion, though that always remains a possibility.
The expert changed her opinion significantly between her first report and second report. Of significance in relation to the issue of the assessment of risk, the expert opines in her second report that she is of the opinion with reasonable medical certainty that the mother is suffering from a psychotic illness, most likely schizophrenia. She sets out the basis of this diagnosis as being the mother’s presentation, and identifies the features suggestive of schizophrenia. The expert opines that the symptoms have been present for some months now, and that they have a significant impact on the mother’s level of functioning.
The expert noted that she initially considered in her first report that the mother’s beliefs did not meet the threshold for delusions, but is now of the view that the mother’s beliefs have evolved to meet the threshold for a diagnosis of a psychotic disorder, and as a result there has been a significant deterioration in her level of functioning, as well as some observed disorganised and unusual behaviour, and thus makes the diagnosis of schizophrenia. The expert also considers that it is possible, for reasons outlined in the report, that the maternal uncle shares the mother’s delusional beliefs, but as the expert has not personally examined him, she cannot definitely confirm that he is suffering from a mental illness, though she opines that the available collateral information suggests that he is.
The expert says, in summary:
Consequently, it is my opinion that the children are potentially at risk of exposure to unpredictable behaviour when in the mother’s care, unless she is assertively treated. Her paranoid delusional beliefs about the father and the persecutory interpretation also potentially places the children at risk. Further, as detailed in the report from the paediatrician, the mother’s refusal to engage with an assessment of the son places the son at risk of further risks in relation to his learning and development.
The expert expresses the opinion that the neglect of the son’s health by both parents is the primary acute risk, coupled with the more long term risk of consequences of a deterioration in the mother’s mental state. In relation to both the need to protect the children from harm associated with being subjected to abuse or neglect, and in relation to parental capacity, the expert expresses the opinion that the mother is currently unable to meet the developmental, intellectual and emotional needs of the children. In this regard, the expert attaches particular weight to collateral information provided, especially that the developmental assessment team for the son were unable to undertake their assessment due to the mother’s lack of support for it, and as she was unable to provide a plausible rationale for why she removed the son from day care on two occasions.
The expert also attaches weight to the mother’s expressed belief that the father was deliberately feeding laxatives to the children. The expert expresses the opinion that the mother is unable to manage the children’s emotional needs in the context of the parental dispute. She also finds that there is a possibility that if the mother remains psychotic as the children get older, she may share the delusional beliefs about the father with them.
Although a number of the concerns raised by the expert relate to long term matters, in this application weight must be given to the immediate matters of concern, especially when considering and weighing up the risks to the children, should the orders be made or not made. In this regard, it is the opinion of the expert that interim orders should be made that the children live with the father until such time as the mother’s mental illness is treated. It is the opinion of the expert that the mother’s current psychotic symptoms result in her inability to ensure that the children’s developmental needs are met, and that if untreated and the mother becomes more unwell, she may be unable to continue to provide the level of care she does at present.
The expert opines “it is evident that the mother has now incorporated the children into her delusional thinking” and gives as examples that the mother did not attend the assessment with the paediatrician as she was concerned that the father had provided information to the team that would undermine her position in the Family Court. She noted that the mother had also withdrawn the son from day care for reasons that appear to be related to her delusional belief that the provider was in contact with the father and also noted the mother’s belief that the father is conspiring with police to undermine the family name and is causing deliberate harm to the children. In particular, she referred to the two instances when the mother had taken the child to hospital and on one of those occasions noted that it was to obtain evidence of this belief.
The expert expressed the view that potential future risks include the mother removing the children from school if she incorporates the school teachers into her paranoid delusional system. There are also risks raised as I alluded to earlier in relation to the release of this report.
While the expert acknowledges that there are difficulties for the children which are not insubstantial if they are to move to live with the father, it is the expert’s opinion that this can be mitigated by steps such as obtaining psychological and therapeutic support for the children which do form part of the father’s proposed orders.
The tenor of the expert’s report, however, is that there is no way to mitigate the risks posed by the mother except for treatment of her mental illness, which the mother as I understand it, currently denies she experiences.
In my view, although the opinion of the expert is untested, a serious risk of harm to the children would arise if the opinions and contentions about the risks posed by the mother turn out to be correct. The consequences for the son in having his various conditions not properly assessed and treated as a result of the mother not permitting that to occur, have already to some extent been realised.
The protections inbuilt in the children attending childcare and in the case of the son a preschool program and soon to be school, have also been denied to the children, and further risks are on the horizon if the contentions about the mother continuing to incorporate others into her paranoid delusional system are correct. The risks associated with the mother potentially taking more serious action such as absconding or other more drastic measures to protect the children from perceived risks posed by the father are also self-evident and serious.
I do not propose considering each of the other additional best interest considerations in this application one by one where the need to protect the children from harm and parental capacity loom so large. Matters such as the views of the children are in any event unlikely to be weighty having regard to the children’s age and the significance of issues relating to protection of harm. Other matters such as the children’s relationship with each of the parents are also not weighty in this application, where the children have an established attachment relationship with both parents. The impact upon the children in being separated from the mother involved in the father’s application is, as I have referred to earlier, a matter of significance but as explained, steps can be taken to mitigate the likely detrimental effects on the children which have been incorporated into the father’s proposed orders.
Having regard to all of the foregoing and giving weight to the matters for the reasons given as indicated, I do make the orders as proposed by the father in exhibit 1 subject to the two amendments that were raised by the ICL.

Associate:

Date: 14 October 2020