Earle & Earle (No. 3)

Case [2021] FamCA 568

FAMILY COURT OF AUSTRALIA

Earle & Earle (No. 3) [2021] FamCA 568

File number(s): PAC2016 of 2018
Judgment of: HANNAM J
Date of judgment: 5 August 2021
Catchwords:

FAMILY LAW – PARENTING – Where the father contends that the mother’s mental health is significantly impaired and seeks orders that he hold sole parental responsibility for the children and that the children live with him and spend limited supervised time with the mother – Where the mother denies that she poses any risk of unacceptable harm to the children and proposes orders that the children live with her and spend defined time with the father – Where the Independent Children’s Lawyer (“the ICL”) supports the father’s proposal in its entirety – Where the most significant issue in the proceedings is the weight to be attached to the opinion of the expert and the mother’s (adversarial) expert regarding the mother’s mental health diagnosis – Where the expert appointed in the proceedings in particular opined that the mother suffers from a psychotic illness, and confirmed that both she and the mother’s expert agreed that the mother’s beliefs are systematised into a delusional system involving a vast conspiracy – Where both experts recommended that until the mother is assertively treated, the children’s time with her should be supervised to mitigate the risks associated with the potential impairment in her parental capacity – Where the expert also opined that whether or not the mother engages in treatment, the pattern of the children’s time with her is likely to require variation given the changing needs of the children as they mature – Where the Court accepts the opinion and recommendations of the expert and attaches significant weight to them in determining that it is in the children’s best interests that orders be made in the terms sought by the father and supported by the ICL – Orders are made accordingly.

RESTRAINTS – Where in the course of the proceedings concerns were also raised about potential risks posed by the mother’s brother and mother’s cousin – Where the father seeks orders in similar terms to those currently in place that restrain the mother from allowing the children to have any contact with these maternal relatives – Where the mother denies that her relatives pose a risk of harm to the children but did not adduce evidence from them and otherwise refused to involve them in the proceedings including disallowing them to be assessed by the expert – Where, despite not having the opportunity to assess the maternal relatives, the expert expressed the view that the mother’s cousin is not a risk-free person and that the maternal uncle may be harmful on the basis of a shared delusional belief with the mother – Accepting the expert’s evidence in this regard, and having further regard to evidence about a history of antisocial and aggressive behaviour displayed by them, the Court considers it appropriate to restrain the mother from bringing the children into contact with the maternal uncle and cousin…

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Earle & Earle (No. 3) [2021] FamCA 568
Case
[2021] FamCA 568
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CaseChat Overview and Summary

In *Earle & Earle (No. 3)*, Hannam J of the Federal Circuit and Family Court of Australia considered a dispute between a father and mother concerning the parenting of their two young children. The father sought sole parental responsibility, with the children living with him and having limited supervised time with the mother, citing concerns about the mother's mental health. The mother denied posing a risk and proposed that the children live with her and spend defined time with the father. The Independent Children's Lawyer supported the father's proposal.

The central legal issues before the court were the weight to be given to expert opinions regarding the mother's mental health and its impact on her parental capacity, and the potential risks posed by the mother's brother and cousin. The court was required to determine what parenting orders would be in the best interests of the children, considering these factors.

Hannam J placed significant weight on the opinion of the court-appointed expert, who diagnosed the mother with a delusional disorder, potentially shared with her brother. Both the court expert and the mother's own expert recommended supervised time with the mother until she received assertive treatment, to mitigate risks associated with potential impairment in her parental capacity. The court accepted these expert opinions and recommendations, finding it to be in the children's best interests to make orders reflecting the father's proposal and the ICL's support. Furthermore, the court considered evidence of antisocial and aggressive behaviour by the mother's uncle and cousin, and the mother's shared delusional beliefs with them, leading to orders restraining the mother from any contact between the children and these maternal relatives.

Consequently, the court ordered that the father have sole parental responsibility for the children, with the children to live with him. The mother was granted supervised time with the children, with specific arrangements for contact, including supervision by a contact agency. The court also made orders restraining the mother from allowing the children any contact with her brother and cousin, citing concerns for the children's welfare.

Orders

Orders of the court

PAC2016 of 2018

IN THE MATTER OF EARLE & EARLE

BETWEEN:

MR EARLE

Applicant

AND:

MS EARLE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged, including all orders relating to the placement of the children on the Family Law Watch List by the Australian Federal Police.

2. The father has sole parental responsibility for the children Y born … 2016 and X born … 2017 (“the children”) and in the exercise of his sole parental responsibility the father shall:

(a) Advise the mother of any proposed decision to be made in the exercise of his sole parental responsibility;

(b) Seek the mother’s input into the decision and take into account her views; and

(c) Advise the mother of the decision made in relation to the children.

3. The children are to live with the father.

4. The children are to spend time with the mother as follows:

(a) For at least two hours each Wednesday, or such other day agreed between the parties in writing between 3.30pm and 5.30pm;

(b) For at least three hours each alternate Saturday between 12 noon and 3.00pm or such other day and/or time agreed between the parties in writing;

(c) For at least three hours each Christmas Day; and

(d) For at least three hours on each of the children’s birthdays, the mother’s birthday and Mother’s Day.

5. For the purpose of Order 4 above;

(a) Time in accordance with Order 4(a) will be supervised by a contact agency as agreed between the parties or failing agreement as nominated by the father;

(b) Time in accordance with Order 4(b) will be supervised by the contact agency (as per 5 (a)) or a third party that is agreed between the parties in writing;

(c) If the children’s time with the mother is supervised by an agreed third party, such time may be extended subject to the availability and prior agreement of the agreed supervisor:

(d) Time in accordance with Order 4(a) will occur at a public location in the E Region in NSW as agreed with the contact service nominated pursuant to Order 5(a) above (and agreed to by the father in writing), or at the father’s home;

(e) If time takes place at the father’s home, the father shall allow the children to spend time with the mother uninterrupted and in his absence;

(f) If time is supervised by a private agency, the costs of supervision are to be borne by the parties equally;

(g) If the children’s time with the mother is supervised by a private agency and any such scheduled time does not occur by reason of cancellation by the supervision agency or because the agency is not available, the father shall facilitate makeup supervised time or arrange for such time to be supervised by a third party at no cost as agreed between the parties in writing.

6. For the purposes of changeover:

(a) In respect to Order 4(a) until such time as Y commences school the mother shall collect and deliver the children together with the supervisor from the children’s day care centre.

(b) In respect of Order 4(a) when Y commences school the mother shall collect the children together with the supervisor from the children’s day care centre and school and deliver them to the day care centre.

(c) In respect of Order 4(a) when both children commence school the mother shall collect and deliver the children together with the supervisor to and from the children’s school.

(d) In respect of Order 4(b) the father or nominee shall facilitate the children spending time with the mother by collecting and delivering the children to the location where the children are to spend time with the mother (to be agreed between the parties in writing, either by text message or by email).

7. In the event the mother engages a treating psychiatrist, and upon the mother informing the ICL of such engagement, the ICL is at liberty to provide the following documents to the mother’s treating psychiatrist:

(a) A copy of these Orders;

(b) A copy of these Reasons;

(c) A copy of the reports of Dr P dated 7 November 2019 and 2 October 2020; and

(d) A copy of the report of Dr Q dated 1 January 2021.

8. For the purposes of Order 7 above, the ICL’s appointment in the proceedings is extended to providing the mother’s treating psychiatrist the relevant documents as listed.

9. The father is to facilitate video/phone contact between the mother and the children between 6.00pm and 8.00pm each Sunday, Tuesday and Friday when the children are not in the mother’s care.

10. Pursuant to Section 68B of the Family Law Act 1975 (Cth) (“the Act”) the mother is restrained from bringing the children into contact with Mr B or Mr C, or allowing Mr B or Mr C to speak to the children and from permitting or allowing any other person to do so.

11. Order 10 above is an injunction for the personal protection of the children to which the powers of arrest under Section 68C of the Act are attached.

12. The father shall advise the mother of:

(a) Names and addresses of the children’s treating health, and allied health practitioners;

(b) Appointments made for the children with specialist medical and allied health practitioners

and the mother is permitted to participate in such appointments and is permitted to receive any reports or information arising from such appointments.

13. The mother is permitted to receive all school reports, notifications and information in relation to the children’s attendance at school, incident reports or any other information usually provided to parents by schools.

14. Each party is restrained from denigrating the other either directly to the children, or in the presence or hearing of the children, and discussing these proceedings or any allegations raised in these proceedings in the presence or hearing of the children.

15. Each party is to notify the other of their residential address, email address and telephone number at all times and is to notify the other within 48 hours of any change to that residential address or telephone number.

16. The mother is restrained from taking the children interstate or overseas without permission from the father in writing.

17. Both parents by mutual agreement are to do all things necessary to arrange the baptism of the child X in a Christian faith.

18. The father is to retain possession of the children’s Australian passports other than if they are travelling overseas with the mother as agreed to by the father.

19. The father and mother have leave to apply for a variation of Orders 4(a)-(d) and the requirement for supervision of the children’s time with the mother at the conclusion of 24 months from the date of these orders by the filing and serving of an Application in a Case.

20. The father shall be permitted to provide a copy of these orders to the children’s school and their treating medical and allied health professionals.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The question for me to determine is which orders are proper having regard to the children’s best interests as the paramount consideration.BACKGROUNDThe parties’ relationship and events immediately following separation The father who is 50 and the mother who is 47 married and began living together in mid-2013. The first of the parties’ two children, a boy now aged five (“the son”) was born in 2016. In August 2016 the parties were visited by police officers who wished to speak to the mother but she refused to engage with them. Police also made contact with the father at his workplace asking him to speak to the mother in an effort to have her speak with them. When the father raised this matter with the mother and asked her what the police visits were about, the mother said that she did not want to talk about it with the father. The father subsequently became aware that a solicitor spoke to police purportedly on his behalf telling them that the father did not wish to be contacted. The father had not engaged this solicitor and later came to understand that the solicitor in question had in fact been engaged by the mother’s brother (“the maternal uncle”) at the time. The police visit was not discussed between the parties again until February 2018. The father has since ascertained that between the first police visit and February 2018 some media attention had been given to police interest in the historic murder of the mother’s father (“the maternal grandfather”) when the mother was aged about 14 at her family home in another state. Until the visit by police in August 2016 the father had not understood that the maternal grandfather’s death was in any way suspicious. In 2017 the parties’ second child, a girl now aged three (“the daughter”) was born. According to the mother’s affidavit, there were incidents in which the paternal grandfather threatened or was actually physically violent towards the son in October 2017 and January 2018. Both incidents were reported to police and investigated. The father and his family members deny the allegations of physical abuse and this is a matter to which I will return. The parties’ marriage began to deteriorate in about January 2018. In February 2018 the mother accused the father of speaking to police and did not accept his denial that this had occurred. No evidence has been adduced in the proceedings to indicate that the father has spoken to the police at any stage other than in August 2016. On 22 February 2018 the mother left the parties’ home with the children and moved to live with the maternal uncle and a cousin (“the mother’s cousin”) in a different part of Sydney some distance from the former family home. Both the maternal uncle and the mother’s cousin have been close to and supportive of the mother for many years. Initially the mother did not allow the father to spend any time with the children for about a month. On 12 March 2018 the mother took the son to hospital as she was concerned that this child had not been himself for about a month. According to hospital records, the mother reported there had been a “twenty sec [second] episode of violent shaking” by the paternal grandfather and since then this child had not been sleeping and was restless. When examined the son was found to be bright and interactive and he was not admitted.

Evidence

Evidence Before The Court

There are ultimately very few, if any, factual matters in dispute between the parties that require resolution. Under cross-examination both of the parties made concessions, especially when confronted with records of various agencies, and many of the gaps in the evidence were filled. This evidence is incorporated in the detailed background just given. The limited factual disputes are ultimately of little moment, as the most significant issue in the proceedings is undoubtedly the weight to be attached to the opinion of the expert and the mother’s expert.The evidence of the mother’s expert After the mother commenced representing herself, the question of the report from her adversarial expert (“the mother’s expert”) was raised.[5] Although this report is of limited assistance to the mother, she was content to have it admitted in her case at final hearing. [5] The report of the mother’s expert, Dr Q dated 1 January 2021 was admitted as Exhibit 10. As previously touched upon, one of the matters upon which the mother’s expert was asked to express an opinion was the mother’s capacity and the question of whether she suffered from a disability for the purposes of the proceedings. In relation to this matter, there is no suggestion in the report of the mother’s expert that the mother is not competent or lacked capacity to instruct lawyers. There was also no other evidence directed to the question of the mother’s capacity or any application in relation to the appointment of a litigation guardian. Neither counsel for the ICL nor the father required the mother’s expert for cross-examination. The mother’s expert, a forensic psychiatrist assessed the mother on 8 December 2020 and prepared a report dated 1 January 2021. In addition to the question of whether the mother has the capacity to instruct a legal representative in these proceedings the mother’s expert was also asked to assess:·The mother’s mental health and psychological state;·The accuracy of the expert’s diagnosis of schizophrenia in the expert’s supplementary report of 4 October 2020;·Whether the mother has any other psychiatric condition or personality disorder and if so, her prognosis; and ·If the mother has such a condition or disorder, any recommendations for treatment or therapy and an assessment of the extent to which her condition impacts upon her capacity to care for or spend unsupervised time with the children. In addition to meeting with the mother for the purposes of assessment, the mother’s expert was provided with all of the documents that had been provided to the single court appointed expert together with that expert’s two reports. The report of the mother’s expert under the heading of Opinion and Recommendations includes the following:·It was very clear to the mother’s expert that the mother along with her brother (“the maternal uncle”) has developed very paranoid views in relation to the legal situation including the lawyers and police in two states.·The mother’s expert opines that the mother’s beliefs are systematised into a delusional system involving a vast conspiracy and go beyond what would be expected in a paranoid world view. ·The mother’s expert is of the view that the sheer number of agencies and people involved show the mother has a pervasive inability to trust and a suspicion that is unshakable and of delusional intensity.·In the opinion of the mother’s expert the mother’s delusions of a conspiracy do not fit the “bizarre” category, that is, they are not totally implausible.·The mother’s expert did not find convincing evidence that the mother had any other features of schizophrenia and as her delusions are not bizarre, he concludes that a diagnosis of schizophrenia cannot confidently be made.·The mother’s expert diagnoses a delusional disorder as more likely than schizophrenia.·In the opinion of the mother’s expert the mother’s delusional disorder has developed either in her alone or in concert with her brother (known as a shared psychotic disorder or folie a’deux) and considers that it is more likely she has a shared psychotic disorder.·The mother’s expert expresses the opinion that it would be important for the mother to have psychiatric follow up for further assessment of the paranoid beliefs and treatment with anti-psychotic medication and that separation from contact with her brother could also assist if it turns out to be shared a psychotic disorder.·While the mother’s expert observes that it should not be assumed that the diagnosis of delusional disorder itself means that she cannot look after her children (and he notes that she was parenting up until recently without concerns being raised with authorities about the welfare of the children), given that the delusions relate to the father, have incorporated the children and have impacted on her help-seeking and engagement with treating professionals, in his opinion there has been an impact on the mother’s parenting.·The mother’s expert agrees with the court appointed expert that with the support of a psychiatrist and anti-psychotic medication the mother’s mental state could stabilise sufficiently for there not to be significant impairment in her parenting.·The mother’s expert notes that the mother will be resistant to anti-psychotic medication, as a key feature of a delusional state is the lack of recognition of the person suffering it that their beliefs are delusional and accordingly considerable effort will need to be made to engage the mother, with an important rationale to optimise her ability to care for her children.·The mother’s expert is of the view that the current significant restriction in the children’s time with the mother is not justifiable on mental health grounds and it also serves to increase the mother’s paranoia about the father and the court process. He opines that the mother’s time with the children could be increased with appropriate supervision with the condition that she does not expose the children to her delusional beliefs.

Decision

Reasons for decision

In light of the foregoing, particularly the volatile and antagonistic nature of the maternal uncle’s behaviour, I have real concerns about the welfare of the children if they were exposed to, or involved with either of these maternal relatives. This is particularly so in circumstances where the mother shares a close-knit relationship with both relatives and coupled with her mental health difficulties, is likely to have difficulty in recognising any such risk they may pose. Accordingly, I consider it appropriate to restrain the mother from bringing the children into contact with the maternal uncle and cousin in any way. CONCLUSIONParental responsibility Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines "parental responsibility" as "all the duties, powers, responsibilities and authority which, by law parents have in relation to children". In Goode & Goode[11] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. [11] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). In these proceedings, there are no reasonable grounds to believe that either parent or any person living with either parent has engaged in abuse of a child or family violence but it is the father’s contention (supported by the ICL) that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them. I take it that the mother who proposes an order of equal shared parental responsibility (conditional on other restraints being made) submits that the presumption has not been rebutted.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.