EARNHART & EARNHART

FEDERAL CIRCUIT COURT OF AUSTRALIA

EARNHART & EARNHART

[2019] FCCA 2501

Catchwords:
FAMILY LAW – Parenting dispute about child almost 14 years old – father’s concerns about mothers mental health – mother suffering at least one psychiatric episode – whether mother likely to undergo future psychiatric episodes – child telling family report writer she wished to see the mother but later telling the Independent Children’s Lawyer she did not – court accepting mother compliance with medication – father’s fears about mother reflecting his dislike of her – court accepting opinion of family report writer – orders for supervised time made.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 11F

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant:

MR EARNHART

Respondent:

MS EARNHART

File Number:

MLC 9333 of 2011

Judgment of:

Judge Burchardt

Hearing dates:

21 and 22 August 2019

Date of Last Submission:

22 August 2019

Delivered at:

Dandenong

Delivered on:

7 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Horsfall

Solicitors for the Applicant:

Moondarra Legal

The Respondent appearing in person

Solicitors for the Respondent:

Not applicable

Counsel for the Independent Children's Lawyer:

Mr Taghdir

Solicitors for the Independent Children's Lawyer:

Taft Lawyers

ORDERS

The father to have sole parental responsibility for the child

X
born in 2005 (“the child”).
The father to notify the mother in writing of any significant exercise of parental responsibility and to give her an opportunity to comment should she wish to do so.
The mother to spend time with the child at a supervised contact centre for six visits.
The matter be adjourned to this Court for further mention before Judge Burchardt at 9.30am on [date] 2019 at the Dandenong Registry.

IT IS NOTED that publication of this judgment under the pseudonym Earnhart & Earnhart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 9333 of 2011

MR EARNHART

Applicant

And

MS EARNHART

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of a child, X, born in 2005. The applicant father seeks that he have sole parental responsibility, that the child lives with him and spends no time at all with her mother. The respondent mother seeks that there be orders for supervised time at a contact centre and thereafter a review. The Independent Children’s Lawyer’s position is more nuanced. It is submitted that if the court orders time at a contact centre then the matter should effectively be left to the child. For the reasons that follow I am going to make an order for sole parental responsibility to the father, with the mother to spend time with X at a supervised contact centre for some six visits. The matter will then return to court although it seems reasonably likely, as the Independent Children’s Lawyer submitted in final submissions that the child will have made her own mind up by the end of that time.

Agreed or Uncontroversial Relevant Matters

The father was born in 1971 and the mother was born in 1973. Somewhat curiously, there is an immaterial dispute about when the parties married (2002 or 2004) but it is accepted that the parties separated in July 2011.
There is no dispute that in November 2015 the mother became seriously unwell and was hospitalised for some time, although there is a dispute as to quite how long. She was at that time diagnosed with bipolar personality disorder and depression.
Following separation the child lived with the mother and eventually ended up, pursuant to court orders, spending five nights per fortnight with the father. The child has lived with the father since November 2015 and spent virtually no time of recent moment with the mother at all.
On 16 April 2018 an Intervention Order was made by consent without admissions against the mother to which both the father and X are named parties for a period of two years.

The Affidavits of the Parties

I do not propose to traverse the parties’ affidavit material in any detail. There are however one or two matters which are worthy of note. It is the father’s case that the mother has had two psychotic episodes. In his first affidavit in this tranche of litigation, filed 1 November 2017, the father asserted that the mother had been incarcerated involuntarily for six weeks as a result of a psychotic episode. He said the mother’s mental health had deteriorated “claiming the birds are back” and that the mother was bipolar and suffering manic episodes. In a further affidavit filed 14 November 2017 the father appends a statutory declaration of Ms B who alleged in this statutory declaration that she was assaulted by the mother in November 2017. He also appended a letter and statutory declaration from another friend who had seen the mother.
In her affidavit filed 20 July 2018 the mother relevantly asserted that she was hospitalised between 23 November 2015 and 18 December 2015, clearly a shorter period of time than that alleged by the father.
The father’s next relevant extract is in his affidavit filed 17 October 2018 where he quotes a report from Dr C, to which I will return, asserting that the mother suffers from a number of conditions including bipolar, anxiety and depression, paranoia, schizophrenia and psychosis and schizoaffective disorder.
I note that it remains the father’s position that the mother suffered another psychotic episode in November 2017. It is apparent from his trial affidavit filed 18 August 2019 that this largely arises out of events in September to November of 2017. These include the incident with

Ms B and also assertions, largely hearsay but not entirely, that the mother had behaved in “a highly agitated state” at his home.
The mother undoubtedly sent a number of grossly offensive messages on Facebook. The grossly abusive language used in these posts would scarcely have endeared her to the father.

The Report of Dr C

Dr C has filed an affidavit which annexes his report on the mother whom he assessed in July 2018. He was not required for cross-examination. Dr C diagnosed the mother as suffering from social and generalised anxiety disorder, schizoaffective disorder and differential diagnosis bipolar 1 disorder. Under the heading Discussion on page 11 of 12 Dr C noted:
According to the summary of notes subpoenaed from D Medical Centre, Ms Earnhart has had two significant psychotic episodes, the first in November 2015 and the second in November 2017. The notes also report that her general practitioner diagnosed her in 2011 as suffering from depression. Reports of the psychotic episodes indicate that at the time she was paranoid and deluded. Although the report in 2017 is not specific it reports that she was psychotic, attacking others and, therefore, a danger to herself and also to the police. In both episodes there were manic symptoms reported, on the first occasion Ms Earnhart was reported to be speaking rapidly, her thoughts were scattered and on the second occasion the report occurred in the context of her previously having spent excessively ($7000 on home security) and engaging in “risky behaviours”. At the time these were diagnosed as Bipolar One Disorder. In my opinion, were Ms Earnhart truly suffering from Bipolar One Disorder the prescribing of Lexapro 20 milligrams (an anti-depressant) would inevitably have triggered a further manic episode and this has not occurred. While it is difficult at this distance, reading summaries of notes to be absolutely certain, in my opinion, the diagnosis is more likely to Schizoaffective Disorder. Whatever the diagnosis of concern is that Ms Earnhart has no insight into the seriousness of her psychiatric condition nor of the likelihood of future recurrences. The prescription of a low dose anti-psychotic would probably reduce the risk of further relapses, the likelihood of which would increase at times of significant social stress.
Ms Earnhart’s lack of insight into the seriousness of her psychiatric condition and her lack of recollection of the development of the illness process suggests that were a relapse to occur, Ms Earnhart would not be in a position to anticipate difficulties and seek help. In my opinion, therefore, were the Court to allow contact between Ms Earnhart and her daughter that contact should be supervised.

The Section 11F Report

Family Consultant Ms E conducted s 11F interviews on 25 October 2018. Ms E noted a then current Intervention Order applied for by the father in November 2017. I note that the mother denied all diagnoses including those made by Dr C save for bipolar disorder. She acknowledged her stay as an inpatient at F Hospital but said it was for three weeks. Ms E found the mother to be anxious, evasive, egocentric and minimising her mental health issues having little understanding of the effect on X and little insight into the seriousness of her condition. I note that on the third page of report Ms E recorded:
It appears as though X has been exposed to her mother’s unstable mental health resulting in her rejecting her mother at this stage. X reported that her father has told her some information about her mother. However, her rejection of her mother presents more about her lived experience rather than an intentional attempt by Mr Earnhart to influence X to reject her mother. Minimising X’s exposure to detailed information about her mother’s mental health may assist X in deciding to have a future relationship with her mother.
It is important that any time spent between X and her mother occur once Ms Earnhart is receiving ongoing and specialised treatment for her mental health and it can be assessed as stable. The difficulty in relation to this is Ms Earnhart’s inability to recognise the severity of her mental health condition. Given Ms Earnhart’s position, there are concerns about her capacity to engage meaningfully in mental health treatment.
I note that X said that when she lived with her mother the mother would act weird. X was very clear in the interview that she did not wish to see her mother.

The Family Report of Ms G

I do not propose to paraphrase the entirety of the family report although of course I have regard to all of it. I note that the mother was seeing a psychologist, Ms H, until at least 20 September 2017 when a new mental health care plan was prepared (paragraphs 5).
Ms G noted that the father had asserted in his Notice of Risk filed 1 November 2017 that the mother was committed for six weeks and at interview he said she was committed for eight weeks. Ms G noted that the subpoenaed documents from D Medical Clinic supported the mother’s information that she was on a temporary order from 23 November 2015 until 18 December 2015 and then in outpatient care with a mental health team. Ms G noted at paragraph 6:
the hospital case notes assessed her risk of self-harm as low and of harm to others as low. The highest risk noted was non-compliance with medication. However, notes also indicate she suffers serious side-effects of the medications attempted including Akathisia (inability to sit still, restlessness) from Abilify and could not tolerate olanzapine.
I note that the agreement the parents entered into after Ms Earnhart was discharged from hospital in 2015 was a week about basis until the father brought his urgent application ceasing time in November 2017.
I note that at paragraph 12 the father described the mother as aggressive with professionals who disagree with her and that she threatens legal action, something the mother denied. Paragraph 13, the report continued:
It was on the basis that Mr Earnhart believed Ms Earnhart’s mental health was deteriorating that he reportedly retained X in his sole care and filed his initiating application for sole parental responsibility and for X to live with him and her time with her mother to be reserved pending an assessment from an Independent psychiatrist. Ms Earnhart had an incident in her home just prior to Mr Earnhart retaining X in his care, with a person who was staying there. Ms Earnhart deposed in her affidavit that the person had been drunk and was physically chastising her child, so Ms Earnhart asked her to leave. It appeared that X did not witness the incident but heard something about it as she informed Mr J at the first 11F conference in December 2017.
At paragraph 18 Ms G reported the father’s proposals which are essentially a reservation of the mother’s time completely. The report relevantly says, “If Ms Earnhart has been compliant Mr Earnhart proposed that X have only supervised time with her mother because of his concerns that Ms Earnhart may have a psychotic relapse and that is she did so she may kill X”. In relation to his concerns that Ms Earnhart might kill X he relied on media reporting about a child being thrown off the Westgate Bridge and the advice in police reports that Ms Earnhart had two knives in her possession when she was arrested by police and conveyed to F Hospital in late 2015.
I note that at paragraph 19 the mother was somewhat at a loss what to propose and that her treating psychiatrist had refused to provide affidavits for the court. The mother is prepared to spend supervised time in a family setting such as K Families to begin with.
At paragraph 36 the report noted:
Mr Earnhart reported that he is supportive of X having a relationship with her mother, but he was opposed to her spending unsupervised time until she is aged 16 years. Mr Earnhart based that on his concern about how X would manage if her mother had a psychosis while she was in her care unsupervised. Mr Earnhart spoke about X as if she was much younger than her current age. He is somewhat surprised by X’s advice to the family consultant at this family report interview.
I note that the mother’s partner described her as anything but argumentative (paragraph 52).
I note that X’s half-sister, L, had only vague criticisms of the mother and had never witnessed any mental health issues other than the mother being compulsively clean (paragraph 56). She had lived with the mother for 12 years.
I note at paragraph 58, having detailed the hospitalisation in 2015, the report continued:
There did not appear to be any collateral information which supported that Ms Earnhart’s suffered a second psychotic period in 2017. However, Mr Earnhart was most insistent that she had suffered two psychotic episodes and that currently a third one is imminent, because he believes she had two in a period of two years from each other and that it is now two years from the second one.
When interviewed by Ms G, X, who is a tall girl, said at paragraph 68:
X expressed a wish to see her mother and confidence that she could manage if her mother became unwell. X explained that if anything went wrong and she was concerned she could tell someone such as the school counsellor. She has her own phone.
At paragraph 72:
X reported she would feel good about seeing her mother in a therapeutic setting initially and then progressing to external to that setting.
At paragraph 81 Ms G opined:
Mr Earnhart impressed as perhaps overstating the impacts on X of her mother’s mental health issues. X has at no time expressed fear of her mother to family consultants and there were no indicators in the hospital records that Ms Earnhart was at risk of harming herself or others. While a psychosis can be distressing to others to observe because it is strange, there is nothing about it that is a risk to X other than she might witness the strangeness.
At paragraphs 82-83 the report continued:
Mr Earnhart had difficulty at interview remaining focused on what would most benefit X insofar as he was repeatedly inclined to focus on Ms Earnhart and his fears about what could result from psychosis. There was nothing to suggest that Ms Earnhart would harm X. It was also curious that Mr Earnhart considers X is old enough to prepare meals for them and do her own washing, but not competent to have a safety plan in place and to act on it if need be when she spends time with her mother. Dr C’s concern about Ms Earnhart having anything but supervised time with X was informed only by his diagnosis of Ms Earnhart and not by any interview with X.
X impressed as a caring child of almost fourteen years of age. She is a tall girl and Mr Earnhart’s example at interview that her mother might throw her over the Westgate Bridge or similar is most unlikely. X has previously been described as insightful and she is clearly intelligent enough to be able to understand an age appropriate professional explanation of her mother’s mental health condition and to have a safety plan in place should she ever need to implement it. X was clearly keen to spend time with her mother in a suitable environment with a professional facilitating to ease them both into re-engaging and to afford her the option of gaining a better understanding of her mother’s mental health. This was notable given the various previous reports about X’s relationship with her mother. The main concern had been that X may have been a parentified child who is accustomed to caring for her mother. However at this interview it was clear she also recalled that her mother cared for her. There may have been an element of X needing to comfort her mother when she was distressed, but at the present Family Report interview, regardless of her having experienced that, she still wanted to see her mother. In my opinion that suggests X has had a primary relationship with her mother and she misses her.
In relation to parental responsibility there was nothing about Ms Earnhart’s presentation that indicated she could not participate in decision making about major decisions about X’s care, such as education or medical decisions or where she lives.
Subject to the caveat that the mother was compliant with her medication and orders to attend a psychiatrist Ms G went on to recommend equal-shared parental responsibility and a commencement of time supervised at somewhere such as K Families or M Families, Suburb M a children’s contact service.

The Subpoenaed Material

The report subpoenaed from Dr N dated 27 March 2018 relevantly asserts about the mother:
Her mood was subjectively and objectively low with a restricted and sad effect. Her thoughts revolved around the legal case regarding her daughter’s custody. There were no formal thought disorders. There were no thoughts of self-harm or harm to others. There were no abnormal perceptions. There were no delusions. Her cognition seemed to be intact and I have not tested it formally. She has some understanding of her illness and is willing to engage in treatment. She does not think she has bipolar affective disorder but, based on the notes from her nursing assessment, it seems that she has had a hypomanic episode. She is at low risk of self-harm or suicide.
Under the heading, Impression, Dr N recorded bipolar affective disorder, current episode depression.
I note that in the material subpoenaed from D Medical Clinic there is an assessment dated 23 November 2015 which relevantly records:
Ms Earnhart has persecutory delusions regarding her stepfather

(fact checked by the police – does not appear to be true). She is carrying scalpels to protect herself. She has no insight & is not accepting of treatment.
She requires further assessment and possibly management in an inpatient setting to contain her risk to others.
I note further that by 14 December 2015 the mother was described as:
Mood is stable. Good insight. Accepts treatment.

The Submissions Made and Evidence Given at Court

The Opening and Evidence of the Father

What follows is taken from my notes. Self-evidently it is not a transcript that records matters that I found significant.
Counsel indicated that he sought the orders in his case outline. The problem was the mother’s time. The parties had been to court before and the mother had failed to attend the second 11F set of conferences. The mother was ordered to attend upon a psychiatrist and the issue was the mother’s mental health. Counsel referred to the report of Dr C and submitted that there was concern that the mother showed no insight. She had had two psychotic attacks. The first in November 2015 caused her to be hospitalised for four days and there was further family violence in November 2017 in front of X where a friend (clearly Ms B) was assaulted by the mother. Counsel also referred to the offensive Facebook postings put up by the wife from time to time about the father. The Intervention Order in April 2018 led to the mother’s exclusion because of family violence. She was to provide an affidavit about her mental health but had not done so. There was no evidence from her psychiatrist who apparently had refused and there was no evidence from her GP either. The father was opposed to any contact at all.

The father adopted his trial affidavit as true and correct. He confirmed that X goes to O School. This involves getting up at 5.40 am and being driven to the bus stop at 7.30. X arrives at school at 8.50 and leaves at 3 pm and is home by 4.15. The father wanted to move her to a school closer to where she lived. The father complained of the mother’s failure to sign to enable X to have a passport and resulting court orders in 2018. He tendered as exhibit A1 a Facebook extract from about December 2017 posted by the wife and a copy of the Intervention Order as exhibit A2.
Under cross-examination by the Independent Children’s Lawyer the father confirmed that orders were made in respect of X by consent in 2012. This continued till 2015 when the mother was committed and the father took responsibility for X while the mother was in hospital. They then went to a seven-seven arrangement against the father’s better judgment. There was no parenting plan. It was just an agreement.
It was put to the father that 2015 represented his first serious time with X. The father said he had limited time with X. He got a phone call from the mother which was very unusual because they never ever spoke. The mother said her car had broken down. He picked X up. X said she thought her mother was going to die and cried all the way home. When he was asked if X was at risk the father said this was very concerning and difficult. The father said there were ongoing concerns until 2017. There were various reports from people. He said there was obviously a second breakdown. 2017 was very serious.
The father confirmed that his application was that the mother’s time be determined by the court. He complained that she had still not provided a psychiatric assessment and that was why he sought that she spend no time with X. When asked how X felt about this his answer, if I understood it correctly, was that he thought X did not want to spend any time with her mother. When asked if X was aware that the father was seeking that she spend no time with her mother the father said, surprisingly, “no”. It appears that he has withheld this information from her.
When he was asked what his view would be if the mother was compliant with her medication and developed insight the father said that that was what he had wanted all along. He wants the mother to be well. It is in X’s best interests. The mother must be compliant with medication and treatment before there was any question of therapeutic counselling. There was a risk of a psychotic episode. When it was put to him that there could be supervised time the father said this would minimise the risk. The Independent Children’s Lawyer put it to the father that X might want time as indicated in the family report. The father said that X was more interested in supervised than unsupervised time.
The father confirmed from 2012 onwards there was limited communication between the parents, normally by text. There were limited texts until the Intervention Order and there has been no contact since save for breaches of the Intervention Orders. He has not spoken with the mother as no emergency had occurred which would have made such contact necessary. He would be able to communicate with the mother if this was necessary. He would consider the mother’s suggestions but he needed a court order for the passport. X had spoken to him about the family report interviews. It was very brief. It was more about her time with the mother. X has said she did not want unsupervised time.
The mother, who was self-represented, only put a few questions to the father. There was first of all an argument about the passport. The mother put it to the father that she had signed twice for passports between 2012 and 2015. The father, whose evidence was throughout extremely accusatory in his tone and terms about the mother, complained that she had wanted an excessive amount of information about his itinerary and when he could not say exactly where he would be.
When the mother put it to him that there was no evidence of a second breakdown in 2017 the father referred to subpoenaed material. He referred to the medical report including of Dr C. He referred to being sent four to seven texts in 11 minutes and referred to the family reports and evidence from a friend.

The Opening and Evidence of the Mother

The mother has said she would like equal shared parental responsibility. She seeks that there be supervised time at M Families, which would be capable of coming into effect two months after final orders are made. She was seeking six visits on an interim basis and then seeking to move to unsupervised time.
The mother adopted her affidavits as true and correct.
Under cross-examination by counsel for the father the mother confirmed her date of birth was 1973. She had suffered from manic depression and bipolar disorders since 2015. She was taxed with Dr C’s observations that she had no insight. The mother said she takes a low dose anti-psychotic drug and that this had been on foot since about March 2019. The first time she had seen a psychiatrist was Dr N in December 2018 who suggested a low dose of anti-psychotic. She saw him in March 2019 a second time and has been taking drugs since. It was put to her that she had seen Dr N in March 2018 and been described as chaotic. The mother did not initially answer this question directly although she eventually confirmed that she had seen Dr N in March 2018. The only thing in Dr C’s report that surprised her was the diagnosis of schizophrenia and she noted this was only a maybe. She started medication in January 2019.
When it was put to her that orders required her to attend a psychiatrist and file an affidavit after compliance, the mother said she had asked

Dr N to do an affidavit but he had refused. On the third appointment she was referred to another psychiatrist, Dr P, who also refused to provide an affidavit. Her GP had attested her statutory declaration and witnessed her signature. She had done everything she could do. Their files have been subpoenaed. She said she had attended the appointments.
The mother confirmed that she was sectioned in 2015. X visited her but was not distressed.
When it was put to her that she has sworn at the father on 19 September 2017 the mother said they had been to mediation and he stormed out. She had tried to settle matters with the father but they ended up fighting and she swore at him. She gave him two fingers (by way of insulting salute).
The mother did not recall an incident on 28 October 2017 when the paternal grandmother reported her as very agitated. She conceded that she had been to the father’s house on 29 October 2017. She had been to the police station and showed the father paperwork. She had applied for an Intervention Order against her stepfather. She had offered to X to stay with her father and her friend had told X to leave. The mother went on to say that she obtained a certificate from her GP in relation to her work. She had told the GP she was stressed about court and problems with her stepfather.
The mother was cross-examined about the alleged assault on 30 October 2017 on Ms B. The mother confirmed that she did ask Ms B to leave because she was assaulting her daughter. The children were upstairs and they were downstairs. When asked about an incident at the doctor’s surgery the mother said she was very angry with her ex-husband and was swearing. This was reflected in postings on social media. All postings were prior to the Intervention Order and there have been none since. She was not on medication for her psychotic condition at the time.
Under cross-examination by the Independent Children’s Lawyer the mother confirmed that she had seen Dr N and Dr P. Dr N recommended an anti-psychotic drug which she has been taking since January 2019. This arose from Dr C’s report. She accepts the diagnosis of bipolar disorder and anxiety. The psychiatrist had told her that the only way she could see her child would be to go along with Dr C. She accepts that she needs the anti-psychotic drug and accepts that she would relapse if she did not take it. It would not be in X’s best interests is she should relapse. It was not in the child’s best interests to see psychosis. X had never said anything to her about this but the mother considered she had done so to others. She first said that she accepted the family report but then disagreed with paragraph 71. She did not appear to understand that X did not want to live with her. There had been no contact in the last year. She did not know how X was at the moment. She thought supervised contact would be a great idea.
When asked if she wanted X to live with her the mother said she would like shared care eventually but not at this stage. This would be a few years down the track. She sought supervised time then unsupervised and ultimately overnight. She wanted supervised time to see how it goes. Then if X was okay, a Saturday or Sunday block of hours. Then, maybe three months or six months, they could move to overnight. The mother said she had addressed her issues, was seeing a psychiatrist and was on medication. She did not know that psychiatrists did not provide affidavits. She found out when she asked him two to three months ago.
Her first engagement with Q Clinic was in March 2018. The second time was December 2018. The first time was in December 2018 then in March 2019. She started the drug in January 2019.
When asked if she could pay for private supervision the mother said she could not. This would be difficult to save $200 for each session. She could do this five times a year. She did not know what X knows about her health and, if I understood correctly, they had never talked about the events in 2015. She had sent X a text explaining her bipolar. She did not accept X’s report about Ms B. She had had no communication with the father since 2017 and would prefer contact by email and provided they were about X. When asked about a change of school the mother said that would be okay if that was what X wants.
In re-examination the mother expressed her concern about the father’s now abandoned desire to live interstate. She confirmed, in response to a question from the court, that she does not like the father very much.

The Evidence of Ms G

Ms G adopted her report which tendered as exhibit C1.
Under cross-examination by the Independent Children’s Lawyer Ms G confirmed that there were risks of non-compliance with medication on the mother’s part. She should take her medication. There is no need for her to accept her illness before one can be confident she is taking medication. The mother had had only one psychotic episode. She attended the police and was taken by ambulance in 2015. She was released after six hours with no diagnosis. She then relapsed in November 2015 and there was a diagnosis. The diagnosis sounded like a preliminary diagnosis. The hospital did not assess the mother as a high risk of harm to others or self-harm.
Ms G had discussed the mother with X. X had no fear of her mother and was confident she could manage the situation. She is old enough to have a safety plan in place. Children are not necessarily affected by psychosis. The father described X saying things to him that suggested a lead-up to psychosis such as crazy behaviour. This was why X wished to live with her father. The mother was assessed at the hospital. The only high risk was around compliance with medication. Ms G was surprised that X was clear she wanted to spend time with her mother. She had given X examples of a safety plan and they had talked about taking her phone with her.
When questioned about therapeutic counselling Ms G said this would help the child to understand her mother’s health issues. X could do with a professional explanation of the mother’s health. The mother did not have to be present and one session was enough. Ms G was not clear whether the mother was compliant with her drug regime. If she was compliant and X had therapy, the child could eventually spend every second weekend with her mother. At the age of 14 six sessions would be enough to move to unsupervised time.
Under cross-examination by counsel for the father it was noted that the mother first sought Dr N in March 2018 at which time she presented as chaotic, stressed and manic and Dr N had recommended a mild anti-psychotic. It was put that the next step was Dr C who also described the mother as manic and the like and then there were court orders in November 2018. It was put that it was not till January 2019 that the mother finally complied and she had not provided medical evidence of having done so.
Ms G responded that the mother was reluctant because of the side effects of the drugs. The mother said she is now compliant and her treating practitioner said she needed a couple of weeks for the side effects to settle down and she had done this. If she was not complying now she will not comply in the future. The hospital had said there was a low risk of violence, harm or self-harm. The mother was only hospitalised for three and a half weeks which is not a long time.
In psychosis people talk really strangely and bizarrely. A child would see at once. When cross-examined about this incident with Ms B in 2017 and the resultant Intervention Order Ms G said that the mother had commented that the other woman was drunk and that the mother was trying to protect her child. X had no fear of her mother. She was surprised X wanted to see her mother. She misses her and would like to see her. She did not know why X had expressed herself differently in the 11F report and to the Independent Children’s Lawyer. Ms G said the father should not be involved in family therapy.
The reports from Dr N and police records and the hospital were tendered by counsel for the father.

The Final Submissions by the Independent Children’s Lawyer

Counsel submitted there was a query whether the child would benefit from time with the mother. If final orders were made the court could have no satisfaction time could be unsupervised. The question was to what extent time should be facilitated and what happened after that. Counsel submitted that orders should be made which would facilitate the child spending time in accordance with her wishes and that the Independent Children’s Lawyer be discharged upon explaining those orders to the child.
Then, in what I have to confess I found to be something of a bombshell, counsel said that he had spoken with the child on 12 August 2019 at his office with another solicitor present. The child had expressed a desire not to see her mother. It was the father who had brought her to the meeting.
I had a number of exchanges with counsel, which I will return to, about the extreme undesirability of counsel putting themselves in evidence in this way.

The Final Submissions of the Father

Counsel sought sole parental responsibility. The father’s position was that this was a safety issue because orders had not been complied with. There was no third party evidence that the mother was taking the prescribed drugs. If she cannot do this while in the conduct of court proceedings she would not otherwise be able to do so. Ms G had not taken the Intervention Order into account or the evidence about Ms B. It was clear from Dr C that the mother has a psychiatric disorder and he had expressed concerns about the mother’s lack of insight on this topic. There should be no time spent where there was family violence because the safety of the child was at risk.

The Final Submissions of the Mother

The mother said she had seen the psychiatrist and taken her medication. She had also executed a statutory declaration, with her GP as a witness, saying she was complying. She was not concerned to oppose sole parental responsibility provided that the father did not relocate. She sought six times and then unsupervised time.
The Independent Children’s Lawyer submitted in conclusion that therapy was not necessary as the child was already aware of her mother’s difficulties.

Brief Observations about the Witnesses

It is always unfortunate to make remarks that may be critical of and/or distressing to the parties or witnesses. Unfortunately, the outcome of this case cannot be achieved without some measure of criticism of both the two primary witnesses.
The father, who is a tall and observably powerfully built man, was at all times accusatory in every question he answered about the mother. This was perhaps particularly observable when she was cross-examining him in person. He impressed me as being controlling and domineering in his style.
The mother, in my view, was remarkably composed at all points during the proceeding, with the possible exception of her cross-examination of the father, which had to be controlled as it appeared to be taking on the aspect of a domestic dispute. The mother answered questions put to her directly. I formed the clear impression that she was, in the main, a witness of truth, something that can properly be said also about the father.
Nonetheless, it is clear that the mother’s recollection of some of the important dates in the proceeding was all over the place. She gave a number of different accounts of her attendances upon Dr N and Dr P, giving completely different dates. Nonetheless, I repeat, she was in the main clearly a composed and truthful witness.
It is not generally necessary to make remarks about the demeanour of a professional witness such as Ms G. Given, however, that, Ms G’s views about X’s wishes are radically different from other professionals in the case, including the 11F writer and the Independent Children’s Lawyer, it is important to note that she was an extremely composed witness. She clearly knew exactly what she was talking about and her views were not the subject of meaningful challenge. I should make it clear that I accept her evidence in its entirety.

The Statutory Pathway

Having made these findings, I turn to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends and holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.    The child’s best interests remain the overriding consideration.”

Parental Responsibility

Given that the mother has accepted that the father have sole parental responsibility provided he does not relocate, in one sense there is really no dispute. The fact is that the father has had, in effect, sole parental responsibility since 2017, when he unilaterally ceased X’s time with her mother. Given the clear interpersonal hostility felt by each of X’s parents for the other parent, and having observed the brief interaction between them during cross-examination, I have no doubt that the presumption is rebutted if on no other basis than it will simply not work. These two parents will never be able to communicate in a reasoned way with one another given their mutual animosity.
It should be noted further that the father’s desire to relocate X to a school where she has substantially reduced travel makes every sense. Given that X now lives wholly with her father and will continue to do so at least for some period of time the only practical order the court can make is to make an order for sole parental responsibility to the father. Realistically, given X’s age, this may well be one of the last significant decisions that either parent gets to take in X’s development and upbringing as she will very shortly, it seems, be likely to be heavily influencing the outcome of such matters herself.
I will require the father to notify the mother in writing of any significant exercise of parental responsibility and to give her an opportunity to comment should she wish to do so.

The Primary Considerations

The father does not think that there is any benefit to X in having a meaningful relationship with her mother. That is the crux of his case. His case is that the mother’s ill health makes it inappropriate for X to see her at all. In part this is based upon assumptions as to the mother’s mental health that are simply self-serving. He has asserted that the mother is likely to have another psychotic episode in 2019 because she had, as he puts it, two episodes in 2015 and 2019. There is no medical evidence anywhere in this case that supports that thesis.
It is understandable that the father dislikes the mother. Her appalling abusive Facebook entries would offend any reasonable person. Nonetheless, as I find, the father’s distaste for the mother causes him to see everything in a dark light as possible and, in truth, his desire to excise the mother from X’s life is, at the very least, heavily influenced by his dislike of her.
Although it is a matter requiring greater weight, I propose to defer consideration of the important criterion of the need to protect the child from abuse or family violence in consideration of the additional considerations.

Section 60CC(3)(a)

X has told the 11F report writer and the Independent Children’s Lawyer that she does not want to see her mother. She has, however, also told Ms G that she does. She is now almost 14 and has impressed everybody who has seen her as a sensible and mature young woman for her age.
This brings me to discussion of the evidence of the Independent Children’s Lawyer. It is simply wholly inappropriate that Independent Children’s Lawyers put themselves in evidence in this way. I accept without hesitation that the Independent Children’s Lawyer was required by the relevant protocols to see the child before the hearing and to inform himself as to her views. There can be no criticism for that. I should make it clear I can understand the dilemma such revelations put the Independent Children’s Lawyer in, but where the matter went wildly off the rails was in the Independent Children’s Lawyer seeking to give the court this information in final addresses.
It is wholly inappropriate for an Independent Children’s Lawyer to become a witness in the case. The proper and infinitely more preferable way to have proceeded would have been to contact Ms G and ask her to review the matter in the light of the new information that had been brought to him. Any practice of Independent Children’s Lawyers putting themselves in evidence in this way should cease. It is wholly unfair to the party against whom the evidence is seen to act as they have no capacity to cross-examine. Nor do they know anything in detail about the circumstances of the interview.
It is perhaps sufficient to say that the inappropriateness of this style of the adducing of evidence is just self-evident. While X was interviewed on her own (that is to say without her father being present) it was her father who brought her to the interview. He is adamantly opposed to the mother spending any time with the child. One might infer, and I think I would, that it is very possible that at the least X is aware of her father’s views and this may well have influenced what she had to say to the Independent Children’s Lawyer. I repeat, Ms G was an excellent witness and I accept her evidence. As I find X does, at the very least from time to time, wish to see her mother even if there are other times when she may not.

Section 60CC(3)(b)

This criterion, in a sense, has just been addressed. X obviously has a well-established and good relationship with her father who has been her primary carer for several years. She obviously misses her mother as Ms G suggests and has a residual love for her at the very least. Given the unfortunate march of the evidence it is not possible to say with certainty exactly where X’s feelings towards her mother presently are.

Section 60CC(3)(c)

It needs to be borne in mind that X was in the primary care of her mother until 2015 and even until 2017 was in equal care. Apart from her ill health there is nothing to suggest that the mother failed to participate in making decisions with the child or spend time and communicate with her. Similarly, there is no doubt that the father has stepped up to the wicket upon the mother’s ill health and has otherwise conducted himself appropriately.

Section 60CC(3)(ca)

The father has wholly provided for the child since she has been in his care. He is, of course, far better off than the mother. He has his own business and owns a holiday home, it would seem, in Town R. He has been able to send X overseas on a number of occasions. The mother’s finances are far more circumscribed albeit that she owns her own home. In these circumstances it is not surprising that the mother’s financial contributions have been extremely limited.

Section 60CC(3)(d)

X is now almost 14 and would well be able to sustain short periods of absence from her father. This will undoubtedly annoy the father whose obvious detestation of the mother leaves him to want to exclude her wholly from X’s life. Being exposed to supervised time at a contact centre, in my view, is most unlikely to do anything more than give X an opportunity to work out, to the extent that her feelings may be ambivalent, what those true feelings are.

Section 60CC(3)(e)

Given the mother’s application to spend some six periods of time with the child in a supervised setting, and the availability of such time within approximately two months of these reasons for judgment, there is in truth no meaningful practical difficulty and expense in the child spending time with the mother.

Section 60CC(3)(f)

The father plainly has the capacity to provide for X’s needs. I note, as did Ms G, that X indeed performs a number of duties that might ordinarily be thought to be adult duties in his household. Where he may be thought lacking is his attitude towards the child’s mother, but this matter has already been the subject of comment and need not be repeated. The mother’s capacity to provide for X’s needs is plainly very directly interrelated to her own mental health. If she is well, there is nothing historically to suggest she is anything other than a competent and caring parent. X lived in her primary care without any significant comment until 2015 and in shared care until 2017. Clearly, if the mother’s mental health deteriorates for any reason then her capacity would be very significantly impaired.

Section 60CC(3)(g)

As already stated more than once X is apparently a self-possessed, insightful and reasonably mature child rapidly approaching 14 years. Her lifestyle with her father appears to be comfortable. She has travelled overseas three times at least of relatively recent times. She has no doubt access to the holiday home in Town R. The mother’s circumstances are more constrained. She owns her own home but has, as I would understand it, a relatively small income. The mother’s lifestyle generally, however, appears unremarkable. She has a partner with whom she undertakes, it would seem, quite a lot of hobbies. The partner describes the mother as anything but argumentative and they appear to lead a perfectly unexceptional lifestyle. The query, of course, remains the mother’s mental health.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

The father has no intention of fostering any relationship between X and her mother and is actively seeking to prevent one. While I can readily understand his anger with the mother the fact is that I have no doubt that he would be unrelentingly critical of her. Whether he expresses this to X is not known but I find it extremely telling that he had not revealed to X that he was seeking to ensure that her mother not see her at all. This suggests to me a controlling and possessory attitude that is not in X’s best interests.
Conversely, the mother is by no means entirely free of criticism either. She has from time to time shown a chaotic lack of insight into her own mental health and being perhaps less than fully active than she should have been to seek assistance. Nonetheless, she clearly desires to be a figure in the child’s life and this is to her credit.

Section 60CC(3)(j)

Any allegations of violence between the parents are now so historical as to be of really no moment. Having heard the mother’s description of the event with Ms B I accept it. Some sort of scuffle undoubtedly developed and there would have been raised voices and, it would appear, the sound of a slap which it is clear that X heard. This has not made X scared of her mother at all and this puts this regrettable incident, in my view, into proper context.
There is an Intervention Order which was taken out on 16 April 2018 for two years. It appears to have been largely based upon the alleged assaults on Ms B, although the Intervention Order tendered does not give details of the basis of the application. I should make it clear that while the mother was undoubtedly, at least at times, in a very agitated mood in late 2017, attending on the father’s home in a highly agitated state for example, Ms G, having studied the subpoenaed files from D Medical Clinic, has expressed the view that there was nothing to suggest the mother had another psychotic episode and I accept Ms G’s evidence.

Section 60CC(3)(l)

In my view it is preferable to make interim orders. While obviously it would be desirable to bring this litigation to an end, (it must after all be a stress for everybody involved), the reality is that the state of X’s desire to see her mother remains very much a work in progress. She was clear with Ms G that she did wish to see her but apparently expressed a contrary subsequent view to the Independent Children’s Lawyer. In these circumstances, in my view, it is entirely in X’s best interest that she spend some six periods of time at a supervised contact centre.
As Ms G said, with a child of this age that will be enough. Either she will determine that she does wish to have an ongoing relationship with her mother or she will not. It is very important that the father, who has the primary care of X, not seek to undermine any desire on X’s part to see her mother. I appreciate he has genuinely held concerns as to the mother’s health but I do not share them. This brings us to s 60CC(3)(m).

Section 60CC(3)(m)

I should make it clear that I accept the mother’s evidence that she has, as she was ordered, attended upon a psychiatrist. When she first saw Dr N, and subsequently Dr C, her mental health was poor. It took her until January 2019 to start taking the low level anti-psychotic drug that she so desperately needed. This reflects a marked lack of insight. It should be noted, however, that mental ill health is first and foremost a matter that properly grounds sympathy rather than criticism (the latter being instantly observable in everything the father had to say about the mother).
I accept that the only reason she has not filed an affidavit from her psychiatrist is that the treating practitioners have refused to provide them. I accept her sworn evidence that she is compliant with her medication.

I am not a doctor, but I was struck as a matter of ordinary human experience by the composure that the mother showed throughout the entirety of the trial in circumstances that must have been extremely stressful for her as a self-represented litigant. Put shortly, I think that the father’s dark fears are grossly over-exaggerated and tend to underpin his extremely negative view of the mother. As Ms G opined, even if the mother were to have some sort of a relapse during the supervised time, it would be strange but not threatening for X who would be well able to handle it.

Conclusion

In the circumstances, it is clearly in X’s best interests that she be given the opportunity that she told Ms G she wanted to see her mother. If in truth her position on further reconsideration is that expressed to the Independent Children’s Lawyer she will soon say so. With a child of this age and maturity her views are likely to be, in effect, determinative, and it is clearly in her best interests that she be given the proper opportunity that I think she deserves to develop and articulate these opinions.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate:

Date: 7 October 2019

[2019] FCCA 2501

7 October 2019

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