Earle & Earle (No. 3) - [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 in any way.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B , 61C, 61DA, 65D, 65DAC, 68B

Cases cited:
Earle & Earle [2020] FamCA 272

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

G & C [2006] FamCA 994

Godfrey & Sanders [2007] FamCA 102

Gorman & Huffman and Anor [2016] FamCAFC 174

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Number of paragraphs: 261

Date of hearing: 9 November 2020, 10 - 13 May 2021

Place: Parramatta

Counsel for the Applicant: Ms Lioumis

Solicitor for the Respondent: Mother in person

Counsel for the Independent Children's Lawyer: Ms Stolier

Solicitor for the Applicant: Coleman Greig Lawyers

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

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).
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).
REASONS FOR JUDGMENT
HANNAM J
INTRODUCTION

The parties (“the mother” and “the father”) are engaged in a dispute in relation to the future parenting arrangements for their two little children, now aged five and three, (“the children”) following the breakdown of their marriage which lasted almost five years.
The parties are also in dispute about an adjustment of their property interests but the proceedings were bifurcated and the parenting matter which has greater urgency received priority and was heard first. This judgment relates to the parenting dispute only.
The father contends that serious shortcomings in the mother’s capacity to care for the children arising from her mental health difficulties are so significant that it is in the children’s best interests for orders to be made that will see him have sole parental responsibility for them and that they live with him and spend limited supervised time with the mother.
It is the mother’s contention that she poses no unacceptable risk of any kind to the children and she seeks orders that would see the children return to live with her and spend defined time with the father as was the previous arrangement following separation.
The Independent Children’s Lawyer (“ICL”) supports the father’s proposal.
The question for me to determine is which orders are proper having regard to the children’s best interests as the paramount consideration.
BACKGROUND
The 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.
At the end of March 2018, the mother began allowing the children to spend time with the father for a couple of hours each week under her supervision.
On 27 April 2018 the mother attended at a city police station with the maternal uncle to make a complaint again that the paternal grandfather had physically harmed the son by shaking him. Police had already carried out some investigation of the complaint but took no further action in relation to it.
The father commenced proceedings in the Federal Circuit Court in May 2018 initially seeking parenting orders only. The mother in her Response also sought financial orders.
The parties reached an agreement about interim parenting arrangements for the children and in July 2018 orders were made with their consent in accordance with this agreement. These orders provided for the children to live with the mother and have unsupervised daytime contact with the father twice each week.
In the months following the parties’ separation, the investigation into the death of the maternal grandfather continued to receive media attention. Various articles published at the time indicate that at first the prime suspect for the death was the mother’s cousin (with whom the mother and the children were living) and that this cousin had been initially charged with the crime but the prosecution was subsequently discontinued. The media articles also quote the police as offering assistance to family members if they had any concerns about their safety. The father was unaware until he read those articles that the mother’s cousin was still being investigated or that police still held concerns about the safety of the mother’s family members.
The father instructed his solicitor to make enquiries of the mother’s then lawyer about the mother’s cousin. He also requested that the mother agree that the children not be left alone with her cousin and indicated that he wished for the mother and the children to move out of the premises she was then sharing with her cousin.
The mother did not consent to any order that she not leave the children in the sole care of her cousin.
In December 2018 the proceedings were transferred to this Court and subsequently an ICL was appointed.
In January 2019 the mother filed an application for the ICL to be dismissed. This application was determined and dismissed on 18 March 2019.
In January 2019 each of the parents noticed a red mark on the son’s neck and each made allegations against one another about the likely cause for it. The mother took the child to a hospital on 19 January 2019 and staff hypothesised that the mark was likely to have been caused by a rash shirt or floatation device.
The following day, notwithstanding the opinion of hospital staff as to the likely cause of the mark, the mother made a report to police at a different police station to that which she had previously attended alleging that the father physically abused the son by placing a rope around the child’s neck. On the basis of the mother’s complaint, police issued a provisional Apprehended Domestic Violence order (“ADVO”) against the father for the son’s protection.
One day later when police served the ADVO on the mother and asked to see her copy of the hospital discharge summary they became aware that this document indicated the injury was consistent with shirt chafing and that the mother had this information with her at the time of reporting the allegations to police. By the following day, police had decided to withdraw the application for ADVO on the basis of the evidence which contradicted the mother’s claims. The application was formally withdrawn by police and dismissed at a Local Court a few days later.

The mother cancelled the children’s time with the father on two occasions (27 January and 9 February 2019) and then continued to withhold the children from him on the basis that she believed the father had taught the son to wrap a tie around his neck and pretend to strangle himself, an allegation which the father denied. On 13 February 2019 the father filed an Application in a Case seeking to change the interim arrangements for the children such that they live with him.
The mother terminated her instructions to her then lawyer and informed a Registrar at a telephone court event on 26 February 2019 that she had done so and needed to appoint a new solicitor due to ongoing police corruption and collusion in the proceedings.
Subsequently three other solicitors who have been engaged to appear on the mother’s behalf withdrew from the proceedings.
The Child Responsive Program
In March 2019 at a stage when the mother was still withholding the children from the father, the family met with a Family Consultant for the purposes of the Child Responsive Program.
Both parents reported to the Family Consultant that the maternal grandfather was killed 30 years previously by persons unknown. The father also explained that as he then felt that a question remained as to the involvement of the mother’s cousin in this death and the potential risk that the cousin may pose to the children, he proposed that the children live with him and that he exercise sole parental responsibility for them. The father also raised concerns about mental health difficulties that he believed the mother was experiencing.
At the time of her interview with the Family Consultant the mother proposed that the children continue to live with her and spend supervised time only with the father. She raised questions about whether the father was using legal processes as a form of control over her and also referred to a risk of harm that she contended was posed by the paternal grandfather.
The mother denied to the Family Consultant that she was experiencing mental health difficulties but said that she believed that the interstate police who investigated the death of the maternal grandfather over 30 years ago were influencing the Family Law proceedings and that she had evidence that the father has been in contact with police when he says he has not.
In her Memorandum to Court, the Family Consultant expressed some concerns about the son’s hyperactivity, speech development and social development and recommended that a paediatrician may be able to assist with an assessment of this child. She also suggested that the Court may be assisted by a report from an expert with suitable qualifications in relation to mental health.
Following the recommendations of the Family Consultant, a forensic psychiatrist (“the expert”) was appointed to provide an expert opinion in the proceedings.
On 10 April 2019 there was a defended hearing before a Senior Registrar in which the mother represented herself. In the course of an interchange between the Senior Registrar and the mother, the Senior Registrar read a particular paragraph from an affidavit that the mother had affirmed on 2 April 2019. In that paragraph the mother deposed to a complaint made to interstate police about corruption of members of that police service “in organising of the publishing of newspaper articles regarding myself and [the mother’s cousin] and their actions in divulging personal and confidential information to the father and influencing a number of my former solicitors who have endeavoured to try and sabotage my case…”. The transcript of the day’s proceedings is then as follows:
SR:so what I understand you to be saying there, apart from the role of the [interstate police] specifically, they have influenced some of your former lawyers. And what your lawyers you seem to be saying have done as a result of that influence, is that your lawyers have tried to sabotage your case by not filing the required responses on time; is that right?
Mother: That’s correct.
SR:So you say your lawyers and some of your former lawyers were sabotaging your case and were influenced to do that by [interstate police].
Mother: Well, that is what I was trying to put into my affidavit.
Interim orders made following that hearing ("the April 2019 orders") provided for the children to live with the mother and spend time with the father on weekends. In error, the orders were published as having been made with the consent of the parties. The mother then filed an application seeking to review the parenting orders but it subsequently came to light that the only matter she wished to have reviewed was the question of whether or not the orders had been made with the consent of the parties.
In June 2019 the parties took the son to see a paediatrician for review as had been recommended by the Family Consultant. The paediatrician opined that the son presented with significant delays in his speech and language development, social development and play skills and demonstrated several restricted and repetitive behaviours which raised the possibility of Autism Spectrum Disorder (“ASD”). The paediatrician recommended that the son be referred to a speech therapist, an occupational therapist and for ongoing paediatric assessment and intervention.
The parties then took steps to apply for funding through the National Disability Insurance Scheme (“NDIS”) for the son which was subsequently approved and a NDIS funding co-ordinator (“the NDIS co-ordinator“) was appointed.
The parties were also seen by the expert psychiatrist in June 2019.
From at least July 2019 the maternal uncle also began involving himself in the proceedings by sending correspondence to the father's solicitors accusing them of corruption. The mother also has a close relationship with the maternal uncle and relies upon him for support. He is also the owner of the property in which the mother and children then lived with the maternal cousin.
Later in July 2019, the mother refused to make the children available for their time with the father on a couple of occasions 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. She expressed concern to agencies such as the local council about the state of the father’s home which she alleged was in some way hazardous and dangerous. No evidence has been adduced in the proceedings to corroborate these allegations.
Throughout July and August 2019 the maternal uncle sent emails to a very wide range of third parties (including the father’s business contacts and former employers, real estate agents, media outlets, members of Parliament and various family law solicitors) accusing the father of child abuse and "corruption" and of having improper influence over the ICL and court-appointed expert. These documents also allege that the complaint of physical abuse against the paternal grandfather was not investigated by police due to the father's contacts and that the father also avoided "interrogation or prosecution" in relation to the red mark, described as a "rope mark" around the son's neck for the same reason.
From August 2019 the mother also sent emails to a wide range of people including the Premier of the state in which her father had been murdered, the Commissioner of that state Police Service and the Police Minister making similar claims about corrupt activity in connection with the investigation of the maternal grandfather's death. In one such email from the mother to the police commissioner, the mother claims that the father has indicated to her that police are paying his legal bills in the family law proceedings and that:
The reason is that [the father] has assisted [interstate] police covertly in the passing of my dear dad’s death 31 years ago, to see if the family has any further information that may be of assistance to them.
…of course as outlined numerous times to you, in my many emails [the father’s] assistance to [interstate] police has come with many benefits, especially that his solicitors [three named solicitor’s from the firm engaged by the father], with the excuse of the police investigation have corruptly influenced “ALL” my solicitors including my own solicitors trying to lead me into [the father’s] solicitors, traps like my recent sworn affidavit with evidence attached about my ex-husband…
I have evidence, because [interstate] police are funding his legal fees, his lawyers, the court appointed independent children’s lawyer [ICL] are working together, and are totally bias against me, because of the way the corrupt [interstate] police are trying to portray my family and me.
…The ICL is Corruptly railroading the family Court case, and working together with the forensic psychologist, in my ex-husband’s total favour, for the above stated reasons, and with the blessing of your Department.
(as written)
In October 2019 the son was assessed by a therapist at the R Service for the purposes of determining the appropriate services to be provided to him. According to this assessment, the son was presenting at that time with below average development across all areas, indicating an overall delayed development. Although the son’s scores on an autism specific screening tool completed by his parents indicated a minimal risk for ASD, the clinical observation did yield some evidence of autism related difficulties. That assessment also recommended that the son attend a particular named playgroup, receive transition support into an early childhood education centre and access therapy support through such a centre. It was also recommended that the son be referred to a paediatrician (based at the Child Development Unit or Service (“CDU” or “CDS") of either the nominated public hospitals closest to the mother’s or the father’s home) for a full developmental assessment.
The mother also continued on a number of occasions to withhold either or both the children from spending time with the father in accordance with the orders due to purported health concerns. The mother obtained medical certificates for the children in relation to many of these occasions from a large number of different medical practitioners and also consulted with another paediatrician without giving notice to the father of the appointment so that he was unable to engage with this doctor or attend the appointment.
The expert’s report-no unacceptable risk in either parent’s care
On 15 November 2019 the report of the expert (“the expert’s report”) was released to the parties. The expert’s report is a matter to which I will return in much greater detail. It suffices to say that the expert opined that the son presented with symptoms consistent with a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) and probable ASD with specific speech and language difficulties.
So far as the issues related to parenting arrangements are concerned, the expert opined that both children had a secure attachment with each of their parents. She also assessed that it was apparent to her that the son misses his father and would like to spend time with him and that the father appeared to have a more nuanced understanding of the son’s special needs. She was also of the view that the son is close to his mother and is likely to struggle if any change to his circumstances is too precipitous. Overall, the expert recommended that it would be best for the children if parental responsibility is shared between both parents and both children are supported to work towards living with both of them on a week about arrangement. It was the expert’s opinion at the time that such an arrangement should be facilitated in a gradual manner with the aim that the arrangements reach equal time with each parent 12 to 18 months in the future.
The expert at that time also opined on the basis of her clinical evaluation and collateral information that the mother had a “paranoid stance” in relation to the father’s involvement with police, believing that he is involved in a conspiracy. The expert considered that this stance was 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 a shared delusional disorder with the maternal uncle.
The expert observed that the father presented with some rigidity in his thinking and appeared to be preoccupied with the maternal grandfather’s murder and his perceived dangerousness of the mother’s cousin, but she considered that these preoccupations were driven by the father’s concern for the welfare of his children rather than by an underlying psychotic process.
The mother’s behaviour following release of the expert’s report
Throughout November and December 2019 the mother did not make the son available to spend time with the father on a number of further occasions due to purported illness. Throughout this period the maternal uncle continued to send emails to a wide range of third parties accusing the father’s solicitor, many of the legal representatives that had previously acted for the mother and other third parties of corruption.
On 16 and 17 December 2019 the mother sent a number of email and text messages to the father accusing him of feeding the children laxatives to induce illness in a deliberate effort to cause her to withhold the children from him, a matter about which he would then complain to the Court. The mother advised the father that she had presented the children to hospital for tests to confirm her suspicions. In one of those emails, the mother referred again to the earlier incident in January 2019 and again alleged that the father had harmed the son “by putting a deep red rope mark right around his neck” and accusing him of thinking that he “got away with” this conduct “because you have been assisting notoriously corrupt [named detective] who has been running our family court case into a 31.5 year old homicide investigation, and with all your deceptions, you have been taking full advantage of the family court”.
Hospital records indicate that the son had been presented to the hospital on 6 December 2019 and discharged with a diagnosis of likely viral gastroenteritis. The records then show that on the afternoon of 17 December 2019 the mother presented both children to the same hospital for assessment as she was “concerned they may have been poisoned by the father with laxatives”. The documents record that the assessment of the son indicated that it was likely he had a viral diarrheal illness but this child was “not clinically unwell”.
Another record relating to the son’s admission on 17 December 2019 indicates that the son was presented by the mother and the mother’s cousin, the latter who is described in the notes as “expressing agitated behaviour, pressured speech, intimidating nature” and was “requesting blood tests for laxatives”. It is also recorded that the cousin stated that “the father must be feeding them laxatives” and “mentioned multiple times that there is a current court case against the child’s father”. According to these records, there was an episode of diarrhoea with the son at the hospital and the maternal cousin took a photograph of the soiling prior to it being cleaned.
The maternal uncle continued sending correspondence to the father’s solicitors accusing them of corruption even though they had asked him to desist from this activity. As a result, the father and paternal grandfather complained to police who sought an AVO for their protection against the maternal uncle.[1]
[1] This AVO was made on a final basis on 1 March 2021.
The mother first contacted the CDS at the nominated public hospital closest to her home in December 2019 for the purposes of arranging an assessment interview for the son as had been recommended by the R Service therapist two months previously. An appointment was booked for June 2020.
On 31 December 2019 the mother sent emails and text messages to the father accusing the father’s brother of hitting the son hard on his head and she also did not make this child available to the father to spend time with him, claiming that the child was unwell.
On 7 January 2020 the father filed a Contravention Application in relation to the mother’s non-compliance with orders but this was subsequently withdrawn on 18 February 2020. At the February court event, orders were made bifurcating the parenting and property matters and with respect to parenting, directions were made to ready the dispute for hearing.
In mid-December 2019 the NDIS co-ordinator assisting with the co-ordination of services for the son had arranged for a teacher’s aide from an education support service (“the education support service”) to be present at the son’s early learning centre (“the early learning centre”) located near the mother’s home. Records of the education support service indicate that the son was often absent from the early learning centre from the beginning of 2020 but he appeared to be doing well on the days he did attend.
By 2 March 2020, the education support service made a decision to discontinue its support for the son based at the early learning centre as that child’s attendance at the centre was so irregular that the service did not consider they had enough hours with him each week to assist the child and had also found the mother difficult to engage.
It is also apparent from the records of the early learning centre that the son did continue attending at the centre and that a meeting with the education support service was to be organised with the parents once his attendance became more stable.
By February 2020, the mother was then representing herself having dismissed a number of further legal representatives or those lawyers having withdrawn form representing her. On 18 February 2020 she filed an Application seeking a number of unusual orders including that the detective of the police service investigating the maternal grandfather’s murder and that police service and its agents, servants or employees “be restrained by injunction from influencing any solicitors/barristers or any individual or entity involved in these proceedings”. The mother subsequently filed an amended Application on 13 March 2020 in which she sought further orders in a similar vein, including that a vast number of lawyers who she had previously engaged and third parties unrelated to the proceedings file affidavits in the proceedings addressing her allegations of corrupt activity, that the ICL be dismissed and that the orders providing for the children to spend time with the father be suspended.
On 18 March the mother sent an email to the director of the son’s early learning centre terminating the son’s enrolment due to the restrictions associated with COVID-19 which by that stage had been declared a global pandemic. By the time he was withdrawn, his attendance had continued to be so sporadic that the education support service had not been able to provide the intervention for this child which formed part of his NDIS plan.
March 2020-the father withholds the children and the mother seeks and obtains a recovery order
On 28 March 2020 the father withheld the children from the mother, following their time with him on the basis that he had increased concerns about their safety and wellbeing in the mother’s care as a result of her recent conduct. A few days later he filed a Response to the mother’s most recent Application in which he sought orders that the children live with him while another Application filed by the mother sought the return of the children to her.
The mother’s application for a recovery order and the father’s application for a variation of interim orders were heard by me on 14 April 2020 and judgment delivered on 23 April 2020[2]. That judgment should be read with these Reasons. In summary, the orders (“the April 2020 orders”) provided that the father return the children to the mother, that their time with him be suspended until 1 May 2020 and that this order be conditional upon the mother’s cousin immediately vacating her household. In addition, the mother was restrained by those orders from allowing her cousin to reside with her or play any role in the care of the children and from allowing the maternal uncle to play any role in caring for the children. Various other orders were made, in particular in relation to the provision of medical attention to the children and steps to be taken if there were a medical emergency. Of particular significance, it was ordered 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) and take all steps necessary to ensure that the son receive all services recommended for him by his NDIS co-ordinator.
[2] See Earle & Earle [2020] FamCA 272.
Events following the recovery order-from mid-2020

The children were then re-enrolled at the early learning centre from which they had previously been withdrawn.
The mother also then moved with the children outside of the CDS catchment area in which she had previously resided.
On 19 May 2020 the mother was informed by the social worker attached to the CDS that the planned assessment could no longer take place as the son was now “out of area” and the assessment originally scheduled for 23 June 2020 was cancelled.
The mother then successfully appealed that decision and the CDS agreed to conduct the assessment of the son (recommended by the therapist at R Service in October 2019) on 10 August 2020.
From around late May 2020, the mother was also attempting to source a psychologist to assist the son and wrote to the father through his solicitor about this matter. As attendance upon a psychologist was not part of the child’s approved NDIS plan at the time, the father proposed that both parties have a telephone or face to face meeting with the NDIS co-ordinator so that this service, if appropriate, could be integrated into the son’s NDIS plan.
For reasons which did not become clear in the proceedings, the father sent copies of the April 2020 orders to various agencies working with the family, such as the early learning centre and a speech therapist, at some point after the April 2020 interim hearing even though leave to do so had not been sought or granted. This appears to have had the effect of increasing the mother’s suspicions about the father’s conduct in the proceedings and interactions with agencies assisting the family.
On 4 June 2020 the mother wrote to the son’s education support service claiming that the relevant staff member had stopped returning the mother’s phone calls and enquiring whether this had occurred because of the father’s denigration of she and her family to the service. She also enquired in that email whether the education support service were still available to assist the son who had once again returned to the early learning centre.
On 12 June 2020 the parties attended further interviews with the expert for the purpose of the expert preparing a supplementary report which had been ordered on 13 May.
On 15 June 2020 the mother wrote to the director at the son’s early learning centre and asked the following:
Can you please honestly advise if my former husband or any of his agents in any way have denigrated my family and me, as he has done with other health care workers?
The mother wrote to the director of the early learning centre again on 24 June 2020 informing the director that if the father were to have any direct communication with the centre, the director is to advise her immediately. The mother claimed in the letter that the father “is forbidden” to make such contact even though there was no order to this effect.
On 22 June 2020 the father was contacted by a caseworker from the Department informing him that the Department had received a complaint that he had physically abused the son. A few days later, on 26 June 2020, an officer from the Department attended at the father’s home and carried out an interview in relation to the allegation. A couple of weeks later the father received a letter from the Department to the effect that the Department had closed its investigation into the matter.
In mid-2020, a second service (“the childhood intervention service”) had been arranged to provide therapeutic intervention and support for the son. On 3 July the parties and other representatives from the relevant agencies met via video conference and developed a plan for a range of services to be provided to the son at the early learning centre.
By mid-July 2020, after the early learning centre had experienced significant difficulties in instituting procedures for communication with her, the mother withdrew both children for reasons which have not been explained. After being withdrawn, the children did not attend any early learning centre or child care centre while living with the mother and the son did not receive the support that had been arranged through the childhood intervention service to be provided at the centre.
The assessment of the son with the CDS was due to take place on 10 August 2020 and arrangements had been made for both parents to be involved in that assessment. A report from the specialist developmental paediatrician attached to the CDS dated 24 August 2020 ("the specialist's report”) (Annexure A to Exhibit 7) indicates that the mother cancelled the son's assessment at around 8.30am on the assessment day, claiming that the son was unwell. The specialist's report indicates that the various members of the CDS specialist team met on that day to discuss the son's case and plan the next steps. The specialist's report is a matter to which I will return but it is noted at this stage that the key points from the CDS team’s case conference discussion included the following:
·The son is reported by multiple sources to have problems in three key areas.
·The parents, therapists, and others engaged with the child all identify that he has significant support needs.
·The team's impression is that the mother seems reluctant to further evaluate the son's support needs and is very influenced by fear of harm from the father and judgment of others.
·Barriers to open engagement have limited the team's opportunity to support the son in steps towards a diagnostic assessment. The social worker on the team has made repeated efforts to engage and inform both parents equally regarding the assessment process and for both to be supported in parenting a child with additional needs.
·From the information available, there is good ground to suspect the son has ASD.
·It is regretful that the son has missed opportunities to benefit from continuity of care from supportive and skilled clinicians. For example, the son is likely to have been better off under the care of a long term general paediatrician, have regular access to speech and occupational therapy and regular attendance at child care/pre-school that has individual goals. Given his age, there is a sense of urgency for understanding, profiling and addressing his support needs.
·The team's access to the content of the expert's report in these proceedings was prohibited by the mother who considered it not necessary for the assessment, but the team considered the contextual information from the expert's report may be pivotal in interpreting the child's behaviour and development and for differentiating biological and environmental induced conditions.
The report also indicates that the father contacted the CDS and asked to reschedule the assessment for the son. The CDS emailed both parents on 14 August 2020 with proposed dates for a formal speech/language assessment and occupational therapy assessment as well as tentative dates for a multi-disciplinary diagnostic assessment but the mother wrote back to CDS on the same date stating “she is strongly opposed to [the son] being assessed by [CDS] and that the team were “not to contact her again”. As the mother objected to the assessment process, it was not undertaken at all.
The expert’s supplementary report and recommendations
As previously noted, the parties were assessed by the expert a second time on 12 June 2020. On 3 July 2020 the ICL asked the expert to refrain from completing her report until some documents which had been made available to the expert for the purposes of the interview were clarified, as requested by the mother’s lawyer. Subsequently, the expert was also asked by the ICL to speak to the specialist developmental paediatrician attached to the CDS before completing the report. The expert held a case conference with the specialist paediatrician and social worker attached to the CDS for the purposes of the expert’s supplementary assessment.
The expert’s supplementary report is also a matter to which I will return in greater detail. For present purposes, it suffices to say that following her second assessment the expert was of the view that the mother’s paranoid beliefs regarding the father and persistent and fixed belief that he and various organisations are involved in a conspiracy against the mother and her family, had evolved into delusions. The expert opined that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning.
The expert was of the view that the mother was suffering from a psychotic illness, most likely schizophrenia. The mother’s psychotic disorder, in the opinion of the expert, had resulted in a significant deterioration in the level of the mother’s functioning as well as some observed disorganised and unusual behaviour. The expert opined that consequently the children are potentially at risk of exposure to unpredictable behaviour when in the mother’s care, unless she is assertively treated.
The expert opined that the mother’s paranoid delusional beliefs about the father and her persecutory interpretation of life experiences potentially place the children at risk, and that the mother’s refusal to engage with an assessment of the son by the CDS places that child at particular risk.
Although the expert also had some concerns about the father’s limited understanding of the son’s needs, which also contributed to the risk faced by that child in particular, the expert’s greater concern was about the mother who in the expert’s opinion “is currently unable to meet the developmental, intellectual and emotional needs of the children”. The expert recommended that interim orders be made that the children live with the father until such time as the mother’s mental illness is treated.
The father’s application for a variation in interim orders is granted-the children move to live with the father-October 2020
On 14 October 2020 the expert’s supplementary report was released, initially to the legal representatives prior to its release to the parties. This procedure was adopted due to the expert’s concerns about the safety and wellbeing of the children who at that stage remained living with the mother.
After the release of the expert’s supplementary report to the parties in Court on 14 October 2020, the father then was given leave (which was not opposed) to make an oral application for a variation in the interim orders. It was his proposal that these varied interim orders remain in place until the final hearing, which by that stage had been fixed for three days to commence on 9 November 2020. The orders he proposed would see the children move to live with him, he have sole parental responsibility for medical and educational decisions in relation to the children, and that they spend supervised time with the mother for up to two hours on two occasions each week.
The ICL consented to the father’s proposal to change the interim arrangements for the children with one small amendment but it was opposed by the mother. The mother’s recently appointed counsel argued on her behalf that no weight should be attached to either of the expert’s reports. For detailed reasons delivered ex-tempore[3], the orders sought by the father (including the ICL’s proposed amendment to which the father agreed) were made (“the October 2020 Orders’).
[3] Earle & Earle (No. 2) [2020] FamCA 1148.
As a result of the October 2020 orders the children moved to live with the father. A few days later, on 19 October 2020 the father took the son to the CDS so that the paediatric assessment that had been recommended 12 months previously could be undertaken.
Within a few days the children were also enrolled at a local child care centre and on 4 November 2020 began spending weekly time with their mother supervised by a supervision agency. The father also started engaging with various support services that had been recommended for the son.
On 5 November 2020 in the week prior to the anticipated commencement of the final hearing the proceedings were listed at the request of the mother for the purposes of yet another legal representative making an application to vacate or adjourn the upcoming trial.
The 5 November 2020 Court event
The mother’s application to vacate the hearing made on 5 November 2020 was initially not opposed by the ICL but was opposed by the father.
The application that the final hearing date be vacated was pursued for a number of reasons. First, it was contended that the mother would be deprived of an opportunity to address the matters that had only recently been raised by the expert (in her supplementary report released to the parties on 14 October 2020) if the trial were to commence the following week.
In an interchange between myself and the mother’s lawyer, I raised the possibility of at least commencing the trial the following week as had been arranged and vacating all but the first day. I indicated that such an approach had the advantage of offering the parties an earlier completion date for the hearing than if the entire hearing were vacated as once commenced, the hearing would be adjourned part-heard
Further, although it was not entirely clear, it also appeared to be suggested on behalf of the mother that a second reason for the application was to afford the mother an opportunity to receive treatment and place herself in a better position prior to the commencement of the final hearing. In my interchange with the mother’s counsel, I indicated that the possibility of commencing the trial with the cross-examination of the expert and then adjourning it part-heard may also give the mother the opportunity to take further steps with respect to treatment informed by the expert’s evidence including cross-examination.
The third reason given for the application to adjourn (which is inconsistent with the previous two reasons) was that an application to appoint an adversarial expert was foreshadowed in order to challenge the opinion of the expert as to the mother’s mental health.
In the course of the interchange between the Court and the mother’s counsel, reference was also made to the mother’s propensity to change legal representatives[4] and the impact this had on progressing the proceedings to finality. Further, given this propensity and the contents of the expert’s supplementary report, I also raised the question of whether the appointment of a litigation guardian for the mother may need to be considered.
[4] The mother at this stage had engaged a further four lawyers on her behalf, none of whom continued to represent her.
After it was confirmed by the ICL that the expert had indeed been arranged as the first witness in the trial, the ICL then changed his position. He then opposed the mother’s application for the entire hearing to be vacated and sought that the hearing proceed on the first day at least, that the expert be available on that day for cross-examination if required by the parties and that all issues in relation to the future management of the trial also be ventilated on the first day.
The mother’s lawyer pressed her application to vacate the hearing in its entirety after this interchange with the bench and change in ICL’s position. The mother’s application was dismissed and the ICL’s application was acceded to for reasons given at the time.
As explained at the time, I adopted the middle ground foreshadowed in the interchange with the mother’s counsel and taken up by the ICL as his preferred position. Accordingly, all but the first day allocated for the trial were vacated and the first day was preserved for cross-examination of the expert including for the purposes of interim orders (and for the mother to receive appropriate treatment) if that were to be the mother’s proposal. This arrangement would give the mother the opportunity to test the expert’s opinion and any additional evidence given by the expert might also inform any application she may have about such interim orders. Preserving the first date would also have the advantage of not precluding the father’s application foreshadowed by his counsel that if the mother were not ready to proceed that the proceedings be finalised as against her on an undefended basis.
THE HEARING
First day- 9 November 2020
When the trial commenced on 9 November 2020, the mother’s recently engaged counsel and instructing solicitor who were based interstate (and unable to travel due to restrictions associated with the COVID-19 pandemic then in place in that state) appeared by video link while the mother was present in the court room.
At the commencement of the first day, it was made clear by counsel on the mother’s behalf that it was the mother’s proposal on both an interim and final basis that the parenting arrangement return to that which was in place before 14 October 2020. So far as interim orders were concerned, the mother anticipated that such orders may be in place for some time as it was also indicated on her behalf at the commencement of the trial that she sought the appointment of an adversarial expert in the proceedings and must have understood that if such an order were made that it necessarily would take some time to arrange the necessary appointments.
It was also indicated that although the mother had previously told the Court she would rely upon the evidence of her cousin and maternal uncle, neither had filed affidavits in accordance with trial directions and she did not seek to adduce evidence from either of them in the proceedings.
As it turned out, the first day of the final hearing was not able to be utilised for the planned sole purpose of cross-examination of the expert as for reasons that were not ever adequately explained, the ICL had failed to provide the expert with the parties’ trial affidavits and a large volume of other relevant documentation in accordance with trial directions.
The balance of the first day was taken up with an application by the mother for the appointment of an adversarial expert in relation to that part of the expert’s opinion in her supplementary report that related to an assessment and opinion concerning the mother’s mental health, in particular the correctness of the expert’s diagnosis of schizophrenia. The adversarial expert if appointed would also be asked to consider the question of the mother’s capacity to instruct lawyers in the proceedings. Ultimately, that issue was resolved by the ICL and father consenting to the mother’s application for an adversarial expert to be appointed in relation to those specific matters.
After that order was made the mother’s counsel indicated that the mother did not press her application for the interim parenting orders to be revisited, and although she wished for the children to be returned to her care on that day she understood that in not seeking to vary those orders there was no possibility that that would occur.
The father’s counsel then made application on his behalf for orders that certain of his costs be paid by the ICL and that another portion be paid by the mother. Subsequently, the father’s application with respect to a costs order against the mother was reserved to the adjourned dates of the final hearing. The application in relation to the costs order against the ICL (which was opposed) was commenced but did not conclude. The ICL also successfully obtained an adjournment on the basis that he wished to adduce some evidence about the circumstances in which he failed to comply with the direction that he provide material to the expert prior to cross-examination. The father’s counsel indicated that a Minute of Order with respect to the costs sought by the father would also be circulated by Friday 13 November 2020 but no such Minute was subsequently filed.
Events following the first day of final hearing
The CDS assessment report dated 19 November 2020, in relation to the assessment of the son the previous month was sent to the parties. This report indicated that the son was assessed as having overall ability in the borderline (below average) range and that his main difficulties are in his peer relationships and behavioural self-regulation. He was not assessed as meeting the DSM-5 criteria for a diagnosis of ASD. The recommendations were for the son to receive a comprehensive early intervention program consisting of regular speech and occupational therapy as well as behaviour support which may be accessed through the NDIS. The plan for the son to attend a pre-school or child care program full time in 2021 to prepare him for school was supported by the CDS team as well as recommendations for schooling in 2022.

In November and December 2020 an early childhood intervention service was engaged by the father so that a special needs educator could assist the son and his teachers in the child care setting and this arrangement has been implemented since that time, funded by the NDIS. A speech pathologist near the father’s home has also been engaged and the son had regular sessions with that therapist as at the date of the father’s updated affidavit (30 April 2021). The son’s name has also been placed on a waiting list for occupational therapy. The father also obtained a referral for both children to attend upon a paediatrician based at a hospital closer to the father’s home. The father also obtained a mental health plan for the son from his general practitioner and subsequently engaged a child psychologist who saw the son on one occasion in late March 2021 and then opined that her ongoing therapeutic support was not required. As this was contrary to the advice from the CDS and the opinion of the son’s current special needs educator, the father sought a second opinion from another psychologist which was still pending as at the date of final trial.
Reports from teachers at the child care centre at which both children have been attending (and in the case of the son on a full time basis since 2021) indicate that the children are progressing well.
The children’s supervised time with their mother that commenced once a week shortly before the first day of final hearing increased to twice a week at the end of November 2020. These contact events have occurred in various public places supervised by a contact service. On some occasions, such as at Christmas time, the father facilitated some additional time between the children and the mother at his home.
The father unilaterally decided not to meet his obligation to pay for half the costs of all supervision and effectively required the mother to pay more than her half share specified in the orders. The father, who is in a significantly superior financial position to the mother, claims that he asked the mother to make this extra contribution on the basis that he could not afford the financial impost of half the costs of the supervision.
The children’s supervised time with their mother appears to have gone well other than a suggestion by the father that the supervisors have not been vigilant enough in supervising the mother which has enabled her to allow video contact on her phone to occur between the children and the maternal uncle and cousin during this time contrary to court orders. The mother denies this allegation.
In December 2020 the mother was assessed by the adversarial expert appointed on her application.
The hearing resumes and is completed – May 2021
The final hearing resumed on 10 May 2021 and by this stage the mother was once again representing herself. On the first day of the resumed hearing, a lawyer who had recently come onto the record as representing the mother sought leave, which was given, to withdraw from the proceedings. Counsel who had previously represented the mother on the first day of the final hearing in November 2020, on instructions from a different solicitor also sought and was granted leave to withdraw from the proceedings.
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.
As neither the ICL nor the father sought to cross-examine the mother’s expert, that expert’s evidence was unchallenged. Most of the opinions of the mother’s expert were also not challenged indirectly with the exception of that expert’s opinion concerning the mother’s mental health diagnosis which was explored under cross-examination of the court appointed expert. Accordingly, in my view some weight must be given to the opinion of the mother’s expert as to matters that were not challenged in any way given the experience and expertise of the mother’s expert set out in his report (Exhibit 10). In this regard, it suffices to say that the mother’s expert holds the relevant tertiary qualifications and currently holds an academic university position in psychological medicine, has been a medical practitioner for 24 years, has worked in psychiatry for 23 years and has been a forensic psychiatrist for 15 years. He has extensive experience in private forensic psychiatry particularly the preparation of court reports and holds other clinical and community positions. He has prepared thousands of forensic reports and appeared in a wide range of jurisdictions as an expert witness.
Cross-examination of the court-appointed expert
A summary of the major findings and opinions of the expert contained in her two reports are set out earlier in these Reasons (see [51]-[54] and [85]-[89]).
The expert was first cross-examined about the differences between her diagnosis of the mother and that of the mother’s expert. The expert remained of the view after having considered the views of the mother’s expert that the psychotic illness she had diagnosed in the mother in her supplementary report was most likely schizophrenia.
There was also some exploration under cross-examination of other differences in opinion between the expert and the mother’s expert about matters that were of no particular significance to this dispute such as the specific diagnosis of earlier mental health difficulties experienced by the mother some time ago. The expert confirmed in cross-examination that the differences in opinion concerning the mother’s past mental health difficulties did not make any material difference to her opinion in the proceedings.
The expert was then cross-examined about matters of greater significance in this parenting dispute, being the nature of the respective diagnoses, the respective opinions about the impact of each condition upon the mother’s parenting capacity and treatment of each condition. Under cross-examination as to these matters many similarities and consistencies between the views of the expert and the mother’s expert became apparent.
First, the expert gave evidence to the effect that schizophrenia (as she diagnosed) and a delusional disorder (as the mother’s expert diagnosed) are both psychotic disorders for which there are only subtle differences in treatment. She did confirm however that delusional disorders are “notoriously difficult to treat and very resistant to treatment” whereas schizophrenia is “probably a better prognosis in terms of treatment response”.
Significantly the expert also agreed that the most salient feature of the mother’s schizophrenia as she had formulised it, is the mother’s delusions as well as “her level of disorganisation and the level of functional impairment that the delusional beliefs were causing”. The expert was of the view that this matter caused her to formulate the mother’s presentation as schizophrenia rather than a delusional disorder. She said:
In a delusional disorder the - delusions are systematised and they are – and a person generally does not have such an impairment of functioning. Whereas when you look cross a longitudinally at [the mother’s] history, she was a pre-morbidly or prior to becoming unwell, she was a highly functional individual who was able to maintain good relationships, attend to her children’s needs, maintain employment and when she became ill there seems to have been a significant deterioration in her functioning in a number of different arenas which the collateral information makes clear. So examples of this would be the deterioration in her relationship – in her marital relationship, and the sudden exit from that relationship. It would also be her ability to engage in what, I think, she would pre-morbidly have been able to do. And you see evidence in the way that this picture evolved in that, for example, she was seeking medical attention and assessment for [the son] and then by the time she had become more unwell, she had included in her delusional beliefs some paranoia about whether the medical team at the children’s assessment service had been influenced by the father or by the police. So what you see is a – is a marked deterioration in different arenas. There’s also some other collateral information from the police that she was giggling and was – that there were – she was incongruent in the way that she presented. And that’s also a symptom of – more in line with a schizophrenia diagnosis.
The expert was then asked to disregard the last mentioned collateral evidence from police about her behaviour on that particular occasion given the possible unreliability of that information. The expert confirmed that her opinion remains the same without that piece of information “because of the pervasiveness and the consequences and the functional impairment”. She also added that the mother had a further symptom, (albeit not a specific diagnostic criteria), being anosognosia, the medical term for lack of insight. So far as this last symptom is concerned, the expert explained that “it’s very predictive of poor prognosis in terms of obtaining treatment”.
The expert 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.
Another reason why the differences in specific diagnosis between the expert and the mother’s expert are ultimately not of great moment in these proceedings, is because, as the expert confirmed, both psychiatrists believe that until the mother is treated any time that the children are to spend with her should be supervised to mitigate the risks associated with potential impairment in her capacity to care for them.
The expert remained firm in her view that until the mother engages with the therapy as recommended (being engagement with a psychiatrist who could prescribe antipsychotic medication, engagement with her general practitioner to monitor the potential side effects of that medication and possibly engagement with a psychotherapist) the impediments to her parenting outlined in her report require that the mother’s time with the children be supervised.
Although the expert was unable to answer the question as to how long it would be necessary for the mother to engage in treatment for any risks to be ameliorated, she did explain that “the general consensus is that for a psychotic illness like schizophrenia you would prescribe an antipsychotic for at least a period of twelve months and at that time you would assess”. The expert added “I would suggest that if she is compliant with her treatment for a period of twelve months and her symptoms abate and her psychiatrist or psychiatric evaluation suggests that there has been a marked improvement, that there can be a gradual move towards unsupervised contact”. The expert described further psychiatric assessment to assess the mother’s treatment response as “really vital”. She explained that this is because risk assessment is a very dynamic process so that speculation at this point has no value.
The expert was also cross-examined about the treatment implications if the mother and the maternal uncle shared a delusional belief which both the expert and the mother’s expert had considered but neither had been able to proffer a final opinion as neither had examined the maternal uncle. The witness explained that this was a difficult matter because if the mother did share a delusional belief with the maternal uncle this may have a negative impact upon her willingness to engage in treatment because of the reinforcing of the delusional beliefs in her interactions with the maternal uncle if he also held those beliefs. This may especially arise in this case as good family support is encouraged given its importance for people who have psychotic illnesses for their recovery process and the maternal uncle is such a significant support for the mother.
When asked, the expert confirmed that she did not advocate for the children having no contact with their mother even if the mother did not comply with treatment. So far this matter is concerned, the expert said:
I – I think that [the mother] has – despite her illness has – is – has a secure attachment with both her children. She is an attentive and considerate and thoughtful parent and having her in their lives is really important to their wellbeing and to their – as – and I believe is in their best interest.
Under cross-examination by the father’s counsel the expert was asked to reflect upon some of the recommendations that she had made in her supplementary report. When asked to confirm that she believed at the time of the supplementary report that there was an acute risk to the children, the expert reiterated the need for caution and said she believed it was “an acute potential risk”. She also added that if the Court made the orders that would bring about the result that the children moved to reside with the father (as did occur) that would present an additional “psychosocial-psychological stressor” to the mother and could potentially result in her mental state deteriorating even further.
Under cross-examination the expert was also asked about some of the matters that came to light in the course of the final hearing. In particular, the mother’s distancing herself from the various communications in her name in which she complains about the father and the belief that he had conspired with police to damage her case in these proceedings and her claim that the maternal uncle wrote these emails or messages and that she had never endorsed such beliefs herself and did not believe the contents of those communications today. The expert said that she could not comment on what the mother now says but is “very certain about what she said directly to me”, adding “and she held very strongly to the belief, particularly when I saw her in June 2020, that there were multiple people involved in a conspiracy against her and against [the maternal uncle] and against [the maternal cousin]”.

Although the maternal uncle and maternal cousin appear to have played some significant role in the children’s lives in the past the mother was not prepared to make them available for assessment by the expert so no findings in relation to those relationships can be made.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Attitude to the children and responsibilities of parenthood demonstrated by each parent
I accept the opinion of the expert contained in her first report which was not challenged under cross-examination that both parents have a positive attitude towards their children and both have demonstrated a pattern of behaviour that allows them to have undertaken their parenting responsibilities effectively. This is subject to one exception and that is a pattern of conduct in which each of the parents engaged prior to the April 2020 interim hearing of withholding the children from the other parent on the basis of alleged concerns about the children’s safety and wellbeing in that other parent’s care.
Both parents have also at all times since separation been diligent in wanting to be involved in decision making about the children, spending time with them and communicating with them. Unfortunately the parents have demonstrated a lack of capacity for joint decision making which on occasions has been to the children’s detriment. On this basis, real concerns arise about the capacity of the parties to equally share parental responsibility for the children in the future as sought by the mother.
Both parents’ neglect in ensuring that the son was provided with services to meet his medical and educational needs in a timely fashion may also be characterised as reflecting poorly upon their attitudes to the responsibilities of parenthood but will be more extensively considered when I return to parental capacity.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
Following separation, it appears that at times when the children lived primarily with the mother she was responsible for their financial support. She makes a point which in my view is not unreasonable, that while the father was quick to criticise her for moving to live with maternal relatives and requested that she move from those premises, he did not offer to provide additional financial support to enable her to move elsewhere.
Otherwise it appears that the father fulfilled his responsibilities to pay child support as assessed and since the children have lived with him in October 2020 he has been responsible for their financial support. This is not a particularly weighty consideration in these proceedings.
Likely effect of change in the children's circumstances
If orders are made as proposed by the father and supported by the ICL the children will not have any significant change in the circumstances that have been in place since October 2020 when they moved from the care of the mother to live with the father.
The one small change in the children’s circumstances which will come about if the parents are able to reach agreement for a third party to supervise their time with the mother (rather than that this occur through a professional supervision service) will undoubtedly be to the benefit of the children. Informal supervision will remove the artificiality of a professional supervision arrangement and allow the children to participate in a greater range of activities when spending time with the mother. There is also the capacity for the children to have some additional time with the mother if the third party supervisor agrees which appears likely if the agreed supervisor is the father’s sister (the paternal aunt) as she gave evidence concerning her willingness to do so.
In my view, the greatest change for the children in their circumstances was brought about when they moved from the care of the mother to the father in October 2020 as a result of the application to change the interim parenting orders then in place following the release of the expert’s supplementary report. It is to be remembered that the expert had previously identified concerns for the children if any change in their care was too precipitous especially given that the mother had been their primary care giver throughout their lives.
In the forgoing circumstances, it seems highly likely that the children’s experience of that change did involve some distress for them at being so suddenly separated from their mother and spending such little time with her. However, as was explained at that time greatest weight had to be given to the potential risk of harm in the mother’s care and the expert’s recommendation that the children move to live with the father until the mother is effectively treated for her psychotic disorder. As it turned out, the soundness of the expert’s opinion about potential risk to the children was not challenged under cross-examination of the expert and was in any event broadly consistent with the views of the mother’s expert following his assessment a short time later.
The mother’s proposal envisages that orders be made for the children to live with her and that they spend time with their father on a gradually increasing basis. While it is proposed that the children’s time would graduate to substantial and significant time with their father including during the school holidays, this is not contemplated to occur until 2023. In other words, the mother’s proposed orders, if made, would bring about a significant reduction in the children’s time with the father. Having regard to the children’s established relationships with the father as also documented by the expert, and their experience of him as their primary caregiver for almost a year, such a significant reduction in their time with him would, in my view, be detrimental to them at this stage.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Practical difficulties and expense associated in spending time with and communicating with the mother under the proposal of the father which is supported by the ICL is a salient feature in these proceedings as that proposal involves the children’s time with the mother being supervised potentially on an ongoing basis.
So far as expense is concerned, the father’s proposal is for the children’s weekly time with the mother after school to be professionally supervised.
In my view, the father’s unilateral decision to require the mother to bear more than her one half share of the costs associated with supervision of her time under the interim orders which became apparent at the final hearing amounts to a misuse of his more powerful position in that the children lived with him. He effectively provided the mother with no choice but to pay more than she was required in order for the children to spend time with her even though the children are entitled to spend this time with the mother under those orders. It is expected that the orders proposed by the father, if made will be adhered to and that the mother will only be required to pay her half share of those expenses.
Although the orders provide that the cost of such supervision is to be shared between the parents, the evidence indicates that this has been a significant cost for the mother given her limited income.
As was indicated by the expert, the current arrangements for the children’s time with the mother will need to be reviewed in around 24 months. This will be the case whether the mother seeks treatment as recommended or declines to do so.
In the event that the mother gains sufficient insight to seek treatment, this two year period gives her an appropriate opportunity to demonstrate that it has been effective to mitigate the potential risks she poses to an acceptable level. If treatment is effective so that the risks she poses to the children are mitigated then any application that supervision be lifted is likely to be successful and any application to increase that time may also be considered.
If the mother does not seek treatment or the treatment is insufficiently effective to mitigate the risks that she poses as a result of her mental health difficulties then the expert opines that the current arrangements will also need to be reconsidered given the children’s change in circumstances as they mature. It is also the view of the expert that if the mother does not seek treatment such supervision of the children’s time with her will be required until at least early adolescence.
For this reason the significant expense and practicality of the father’s proposal, given that the parties live in different parts of Sydney (some distance from one another) is a significant consideration.
The mother’s proposed orders do not entail any difficulties of a similar nature.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children's needs including emotional and intellectual needs
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
In my view, parental capacity to meet the needs of the children and the associated issue of the mother’s mental health difficulties are the most salient considerations in these proceedings. As touched upon earlier in these Reasons, when considering the need to protect the children from harm arising in the particular ways identified in that primary consideration there is some overlap between that consideration and parental capacity. In my view, the relevant risks in these proceedings are more appropriately characterised as matters related to parental capacity.
As also touched upon earlier in these Reasons when outlining the expert’s opinion in her first report, the expert was of the view when she assessed the family in June 2019 that the close nurturing relationship that each parent had with the children indicated to the expert that both parents were then able to parent effectively. The expert described both parents as being nurturing, supportive and present for both of the children. She was then of the view that neither of the children were at risk of physical or psychological harm in either household, and that the mental health of both parents was good and stable. The expert also then opined that should both parents’ mental health remain stable, their capacity to care for their children is likely to remain sound.
By the time she reassessed the parents one year later in June 2020, the expert had changed her views as to the mother’s mental health considerably. The expert was then of the opinion that the mother had become quite unwell and was at that stage suffering from a psychotic disorder which the expert considered was most likely schizophrenia.
The expert identified a number of risks to the children when in the mother’s care unless she is assertively treated for this condition. First, the expert identifies that there is potentially a risk of exposure to the mother’s unpredictable behaviour due to her paranoid delusional beliefs about the father and her persecutory interpretation of life experiences. The impact upon the mother of her beliefs and interpretation of life experience had by the time the second assessment was undertaken also already placed the son in particular at risk as these matters formed the basis of the mother’s refusal to engage with an assessment by the CDS of that child. This refusal as explained by the specialist paediatrician to both the expert and in his report admitted in the proceedings, meant that this child had not accessed appropriate supports given his age which has already made his prognosis much poorer.
The expert also had some concerns about the father’s limited understanding of the son’s needs and the manner in which his lack of understanding had placed the son at risk of the consequences of not accessing support and treatment in a timely manner. The expert opined however that if the father is able to develop more insight into his son’s needs and if he seeks appropriate assessment and treatment for that child, then this risk may be mitigated.
In my view, the actions taken by the father in a very timely fashion after the children came to live with him demonstrates that he has gained more insight about the son’s needs which is likely to go a significant way in mitigating that risk.
In her supplementary report, the expert assessed the father as having the capacity to meet the children’s needs subject to the issues just discussed about his more limited capacity to provide for the son’s developmental intellectual and psychological needs. The expert was also concerned that the father’s breaching of orders at an earlier stage in the proceedings and deliberately withholding the children from the mother’s care indicate to the expert that he was struggling to facilitate the children maintaining a secure attachment relationship with their mother. As I noted earlier in these Reasons, both parents engaged in this practice for the first year or so following separation which showed a poor understanding at the time of the children’s emotional and psychological needs.
The expert was not challenged on her opinion and she remained firm under cross-examination that the mother was at the date of her supplementary report (June 2020) unable to meet the developmental, intellectual and emotional needs of the children. The expert was particularly concerned about the mother’s refusal to have the son assessed by the CDS team and about the mother’s inability to provide a plausible rationale for removing the children from child care and withholding the children from the father on occasions in the past, and the mother’s claims about the father’s conduct, particularly that he was deliberately feeding them laxatives.
When the parents were assessed for the purposes of the supplementary report, the expert reported that the mother remained firm in her belief that the father was intentionally causing the children harm which the expert opines is a belief the mother holds as a consequence of her psychotic illness. The expert noted that the mother had gone to some lengths to prove that the father was causing harm to the children by seeking medical confirmation that he gave the children laxatives and also withdrawing them from his care. Having observed that there is a risk that the mother may incorporate the children into her delusional thinking, the expert then went on to indicate that there was evidence that this had occurred.
The expert gave the example of the mother not attending or presenting the son to the assessment with the CDS team as she was concerned that the father had provided information to the team that would undermine her position in the Family Court and had withdrawn the son from day care for reasons that appeared to be related to her delusional belief that the provider was in contact with the father who she believes was conspiring with police to undermine her family name and implicate her cousin in the murder of the maternal grandfather. The expert also referred to the mother’s belief that the father was deliberately causing harm to the children and had taken them to hospital to obtain evidence of this. The expert went on to opine that future potential risks might include the mother removing the children from school if she were to incorporate the school or teachers into her paranoid delusional system which would place the children at risk of not meeting their learning and developmental milestones and of poor life outcomes in the future.
The expert was also concerned about a further possibility that if the mother remains psychotic, as the children get older she may share her delusional beliefs about the father with them which may potentially result in asking them to be vigilant or aware that their father is trying to harm them which would be detrimental to their emotional wellbeing.
The expert opines that each of the foregoing risks are likely to remain present for so long as the mother’s delusional beliefs arising from her psychotic illness are untreated. For this reason, I consider that the proposal of the mother which provides for the children to live with her and makes no reference to her need to receive treatment is fraught with potential risk for the children.
In summary, the expert recommends in her supplementary report that the children move to live with the father and that such an arrangement should continue until the mother’s mental illness is treated. It is also the expert’s recommendation that any time the children are to spend with the mother continues to be supervised and that a psychiatric assessment be completed to assess the mother’s capacity to parent the children prior to making any orders restoring them to the mother’s care.
The mother was also assessed in December 2020, six months after the expert’s second assessment by the mother’s (adversarial) expert. Although there are some differences in opinion between the expert and the mother’s expert, such as in relation to the exact diagnosis of the mother’s condition, the opinion of the mother’s expert as to the mother’s parenting capacity was consistent with the expert’s opinion.
The mother’s expert also opined that the mother was suffering from a psychotic disorder which he diagnosed as a delusional disorder. He opined that as “the delusions relate to [the father], have incorporated the children and have impacted on her help-seeking and engagement with treating professionals”, there has been an impact on the mother’s parenting. Although the mother’s expert does not explore the mother’s level of incapacity to the same degree as the expert, it can be inferred from his report as a whole that without treatment the children’s time with the mother must remain supervised. It is clear however that he felt that the current limitations were not justifiable on mental health grounds and could be increased “with appropriate supervision, with the condition that she does not expose the children to delusional beliefs”. (emphasis added)
The orders proposed by the father and supported by the ICL require that all of the children’s time with their mother be supervised by a professional supervision service on a weekday and either by such a service or a third party agreed between the parties in the case of the weekend time.
The father clearly has within his contemplation that a suitable agreed third party may be his sister who gave evidence in the proceedings and in my view demonstrated her capacity, suitability and willingness to perform this role. I was also impressed by the goodwill of the father’s sister towards the mother and her willingness to put herself forward to not only provide supervision of time as specified in the proposed orders, but to undertake additional supervision as she has done in the past so that the children could receive additional benefit from spending more time with their mother.
Clearly, supervision of children’s time with a parent in any circumstances is artificial and often brings with it other limitations due to the need to pay for a supervisor or to meet the convenience of an unpaid supervisor, so that such a requirement is only imposed if it is absolutely necessary in the best interests of the children.
In these proceedings, both the expert and the mother’s expert give clear, unequivocal and unchallenged evidence that the children’s time with their mother must be supervised and cannot progress to unsupervised time until the mother has engaged in treatment for some time. For this to happen treatment must also be assessed to have been effective in reducing or eliminating those symptoms of the mother’s illness which impact upon her parenting capacity so that supervision is no longer required to protect the children from those potential risks of harm.
The expert was equally clear in her oral evidence that it was not possible for her to predict how long the mother would be required to engage in treatment or that treatment would necessarily be effective to mitigate the risks posed by the mother arising from her mental health difficulties or that the mother would have sufficient insight to engage in appropriate treatment at all. The tenor of the expert’s evidence was, however, that as the mother had functioned well as a parent prior to becoming unwell, had a close attachment relationship with the children and authentic concern for them and a desire to be a significant part of their lives, these matters may be sufficiently motivating for the mother to seek out appropriate treatment and engage in it until she received an appropriate level of benefit from it.

Although the mother’s submissions in relation to the evidence generally at the end of the proceedings were somewhat difficult to follow, I understand that she did maintain the position that she does not have delusions in relation to a conspiracy between the father and police which has disadvantaged her in the proceedings including causing a large number of lawyers she has engaged to act other than in her interests. The mother specifically disavowed holding the beliefs expressed by the maternal uncle in voluminous correspondence in which he engaged and insisted that even the emails that were said to have been authored by herself were in fact written by her brother.
I do not accept that the mother was not the author of these documents or that she did not believe the matters contended in them for the following reasons.
A number of statements about these beliefs have come from the mother herself. For example, transcript of the interchange between the Senior Registrar and the mother in April 2019 makes it clear that the mother held those beliefs at that time.
I also attach weight to the nature of the orders sought by the mother at the time she sought a recovery order in March/April 2020 and the way in which her case was presented on that occasion as set out in the April 2020 judgment[10].
[10] See in particular paragraphs 78 and 79.
I further accept the evidence of the expert that the mother’s presentation to her on both occasions was entirely consistent with the beliefs expressed in those communications and consistent with things the mother herself told the expert on both occasions.
As recently as December 2020, when the mother was most last assessed, in addition to considering the large volume of documents under the mother’s hand, the mother’s expert reports that the mother “believed that her previous lawyers were not working in her best interest, and that the ICL had exhibited bias against her”, “believed that the NSW police had harassed her” and “believed that there could be a connection between NSW and [interstate] police”. The mother’s expert did also include in his report that the mother adamantly then denied believing there was a conspiracy between lawyers, police and the father and did not believe that it was an organised process but observed that this was contradicted by the mother’s emails.
So far as the mother’s current belief as to matters of this nature are concerned, I note that her proposal for final orders itself contains a proposed restraint upon the father “from discussing the circumstances, including any alleged circumstances, relating to the death of the mother’s late father” and from “denigrating the mother or any members of her family” to various health care, educational NDIS providers or relevant government agencies. If the mother does not currently believe that the father had discussed the circumstances relating to the maternal grandfather and denigrated she and members of “her family” (which she explained in evidence is a reference to the maternal uncle and maternal cousin) to various third parties and that these matters did not have relevance to the parenting proceedings, it is difficult to see why she seeks such an restraint.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
As can be seen, one of the orders sought by the father and supported by the ICL will inevitably lead to the institution of further proceedings. This order relates to the children’s time with the mother and in particular the ongoing need for supervision.
The necessity for the children's time with the mother to be supervised has already been explored in these Reasons. The supervision proposed by the father and ICL is consistent with the recommendations of the expert who expressed the view that such time should be supervised for so long as the mother remains untreated or treatment is shown to be ineffective. Although the expert said it is difficult to predict, the supervision should remain in place in these circumstances until early adolescence but the pattern of that time is likely to require variation given the changing needs of the children as they mature. In other words, the orders for the mother’s time will require reconsideration whether the mother engages in treatment or not.
Further, the authorities are clear as to a court's obligations in considering an order for indefinite ongoing supervision of time between a child and parent. The Full Court in Gorman & Huffman and Anor [2016] FamCAFC 174 said at [296] - [297]:
It appears that the guideline stems from a premise founded in the "undesirability of, and the practical difficulties associated with, long term supervision in a children's contact centre" and the impact each and both might have on the welfare of the children concerned (Boland J in Moose, cited with apparent approval in Slater v Light and referring to "Guideline for Family Law Courts and Children's Contact Services, January 2007 … published by the Attorney-General's Department, the Family Court of Australia and the Federal Magistrates Court of Australia).
The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give "cogent" reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to "allow for some review of the situation in the future". Fourthly is the need to give reasons reflective of the consideration of those issues.
The order proposed by the father for a mechanism for the Court to reconsider the orders relating to the children’s time with the mother provides such an opportunity to both parties. In my view, if orders are otherwise made as sought by the father then it is necessary to give both parties the capacity to seek a variation of the orders with respect to the children’s time with the mother as this will be necessary whether the mother engages in treatment or not. For this reason, I do not consider that it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children as such revisiting is necessary in the circumstances of this case.
Restraint against the maternal cousin and uncle
Throughout the course of the entire proceedings concerns have been raised about the potential risks posed by the maternal uncle and maternal cousin with whom at some stage the children (together with the mother) lived and both of whom have been otherwise heavily involved in supporting the mother, including in the care of the children.
Under s 68B of the Act, the Court is empowered to grant such injunctions as it considers appropriate and necessary for the welfare of a child. These injunctions may relate to the personal protection of a child or parent and may include restraining a person from entering or remaining in the place of employment, residence or education of that child or parent.
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 the maternal uncle and maternal cousin. I take the following matters into account in considering whether it is appropriate and necessary to continue such restraints.
First, the father deposes to a history of abusive and intimidating behaviour by the maternal uncle in particular which was not challenged by the mother at final hearing and is consistent with a number of concessions she made in her oral evidence. This behaviour of the maternal uncle was sufficient to result in an AVO being made for the protection of the father and paternal grandfather. At final hearing, counsel for the father brought to the Court’s attention the vast number of email and text messages sent by the maternal uncle in which derogatory and denigrating comments were made about the father to various third parties including members of the paternal family, the father’s work associates and government agencies. It is submitted on the father’s behalf that while the mother does not dispute that the maternal uncle engaged in such erratic behaviour, she appears to understate his actions in order to preserve her family “loyalty” to him.
In addition to the vast number of email and text messages sent by the maternal uncle there is also evidence within police records of a number of complaints made about this uncle’s interactions with police and members of the public which those complainants considered harassing and anti-social in nature. For example, the complaints alleged that the maternal uncle approached these people and accused them of involvement with agencies such as corrupt police and of having harassed the mother’s family even though these people were complete strangers to the maternal uncle. Under cross-examination the mother claimed that she had no recollection about these incidents and when informed of the allegations about the maternal uncle and asked about his conduct that lead to the AVO she expressed no concern about the conduct itself. The only matter related to any of these events that gave the mother concern was the fact of an AVO having been made against the uncle which she found “upsetting”.
There is also a clear commonality between the beliefs of the mother and maternal uncle which was observed by both experts. The mother has also acted on these beliefs to the detriment of the children in the past and is unable to demonstrate any insight into the potential risks to the children if those beliefs are acted upon either by herself or the maternal uncle in the future.
So far as the maternal cousin is concerned, there is evidence to suggest that he, too, has a propensity to act aggressively and that this aggression relates to his beliefs about the father and the care of the children. Hospital records relating to the son’s admission in late 2019 (Exhibit 39) indicate that during the child’s medical examination the maternal cousin verbally harassed hospital staff and caused them some concern. As recent as January 2020, the maternal cousin has also been the subject of criminal charges relating to illicit drug use. Although the mother attempted to suggest that these police records were false she did not adduce any reliable evidence consistent with that assertion.
Further, although it is the mother’s case generally that the maternal family does not pose any risk of harm to the children and she insisted under cross-examination and in submissions that neither the maternal uncle or maternal cousin have ever involved the children in the family law dispute, she provides no evidence in support of these contentions. Although potential risks posed by both these relatives has been a live issue throughout the proceedings the mother chose not to have them assessed by the expert or to adduce evidence from either of them at trial.
While the expert appointed in the proceedings had no opportunity to assess the maternal uncle or cousin in part as the mother refused to involve them in any assessment, I accept the expert’s opinion contained in both her 2019 Report and her supplementary report prepared in 2020.
In her 2019 report in particular, although noting that the maternal uncle posed no live issue at the time given he was not then part of the children’s household and concerns raised in records produced on subpoena were otherwise historical, the expert observed the following in relation to his chain of harassing emails about the father:
[they]…have a paranoid flavour and the [emails] suggest that [the father] is involved in a broader conspiracy to discredit [the mother] in regard to the matters before the Family Court. This theme is consistent with [the mother’s] narrative at interview, suggesting that this may be a shared belief or paranoid world view, perhaps developed in the context of previous traumatic experiences.
(emphasis added)
In her supplementary report dated 2020, the expert further observes that police records also describe the maternal uncle as having “similar beliefs to [the mother], about corruption and a plot to harm his family’s reputation”. The view that the maternal uncle may share the delusional beliefs held by the mother was also held by the mother’s expert. While under cross-examination the expert acknowledged that in the absence of any assessment of the maternal uncle it is difficult to have a definitive opinion in relation such diagnosis, she did recognise the possible negative impact it may have on the mother’s engagement in treatment which in turn affects her capacity to parent the children.
In relation to the maternal cousin, the expert reviewed various collateral information relating to him including police records and while she was unable to formally assess him, she was unable to conclude that he was risk-free.
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.
CONCLUSION
Parental 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.
The expression "sole parental responsibility" is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father if made must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
In these proceedings there is no evidence that the parents have any capacity for joint decision making in the best interests of the children. There has been a very high degree of mistrust between the parents that pervades the whole of the mother’s case in particular. In her second report, the expert opined that the parents do not have the capacity to co-parent on a long term basis.
As the expert recommends that the children live with the father and have quite limited supervised time with the mother until she has demonstrated that she has been effectively treated with respect to the matters that cause her to pose risks to the children, in my view the presumption has been rebutted such that it would be not in the children’s best interests for the parents to have equal shared parental responsibility for them.
Other parenting orders
As has been explained in these Reasons, I have attached particular weight to the opinion of the expert in determining these parenting proceedings and also given some weight to the opinion of the mother’s expert. For the reasons given I have also attached particular weight to each parent’s capacity to meet the needs of the children and the need to protect the children from harm in determining where the children shall live. These matters, together with the nature of the children’s relationships with each of their parents are also significant in determining the amount of time the children shall spend, and the circumstances in which it is to be spent, with the parent with whom they are not living.
For all of the reasons given, I am satisfied that the orders proposed by the father with respect to the children’s parenting arrangements which are also supported in their totality by the ICL are proper and are in the best interest of the children.
I also consider for the reasons given that the restraints under s 68 B in relation to the children’s contact with the maternal uncle and maternal cousin are appropriate and necessary in the circumstances.
For all of the foregoing reasons, I make the orders as set out in the forefront of this judgment.

I certify that the preceding two hundred and sixty-one (261) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 5 August 2021

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 in any way.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B , 61C, 61DA, 65D, 65DAC, 68B
Cases cited:	Earle & Earle [2020] FamCA 272 Earle & Earle (No. 2) [2020] FamCA 1148 G & C [2006] FamCA 994 Godfrey & Sanders [2007] FamCA 102 Gorman & Huffman and Anor [2016] FamCAFC 174 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Number of paragraphs:	261
Date of hearing:	9 November 2020, 10 - 13 May 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Lioumis
Solicitor for the Respondent:	Mother in person
Counsel for the Independent Children's Lawyer:	Ms Stolier
Solicitor for the Applicant:	Coleman Greig Lawyers
Solicitor for the Independent Children's Lawyer:	Brian Samuel & Associates

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