Festa and Comer

FAMILY COURT OF AUSTRALIA

FESTA & COMER

[2016] FamCA 430

FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the child – where the father alleges the mother suffers from a long history of mental illness and therefore she is a risk to the child – where of recent date the mother’s time with the child has been subject to supervision – where the Court finds that the mother’s mental health is not in and of itself a barrier to the mother having a relationship with the child – where there is no evidence to suggest the child is at risk of physical harm – where orders are made for the child to live with the father and for him to have sole parental responsibility – where the mother is required to undertake therapy and upon successful completion the child’s time with the mother shall be reinstated.

Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 61DA, 65DAA, 65L

Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Cotton & Cotton (1983) FLC 91-330
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
M v M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Festa

RESPONDENT:

Ms Comer

INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

FILE NUMBER:

ADC

3218

2014

DATE DELIVERED:

2 June 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

7, 8, 9 and 10 December 2015 and 24 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of South Australia

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

Ian Charman and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman Waterhouse Lawyers

Orders

That the father have sole parental responsibility for B born … 2010 (“the child”).
That the child live with the father.
That the mother be at liberty to send cards, letters and gifts to the child on no more than one (1) occasion each month and at a postal address provided by the father and that the father do ensure the same are read to and provided to the child.
That the mother be authorized to receive direct from the child’s school (at her expense) information regarding the child’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the father do provide to the mother not less than three (3) current photos of the child on each occasion with such photos to be forwarded every three (3) months to a postal address provided by the mother.
That at her election the mother attend upon an appropriately qualified mental health professional for the purpose of engaging in dialectical behavioural therapy as recommended by Dr C in his report dated 4 February 2016, with the mother to provide the health professional a copy of Dr C’s report, his earlier reports and those of her treating psychiatrist Dr A together with a copy of the reasons published this day and a copy of these orders and that she undertake not less than ten (10) therapeutic sessions with the said nominated mental health professional.
That subject to the provision of a report by the provider of the said therapy pursuant to order 6 indicating that the therapy has effected a meaningful and positive change in the mother’s ability to respond appropriately to stressors, the parties with the assistance of the Independent Children’s Lawyer (“ICL”) are to attend upon a therapist with the focus of such therapy to be as follows:-
(a) To create a healthy parent and child relationship with the mother;
(b) To reinforce with the child that he is not at risk from the mother;
That the parties participate in such therapy on the basis that the said therapy shall be on such occasions and with such frequency as shall be determined by the therapist PROVIDED THAT the said therapy shall be completed within a period of twelve (12) weeks and that at any time spent between the mother and the child during the said period of therapy shall be by arrangement and agreement between them and as may be directed by the said therapist but not otherwise.
Other than assisting the implementation of the therapy the appointment of the ICL shall be discharged.
That the father will do all things necessary to cause the child to attend upon the said therapist and thereafter facilitate all sessions.
That at the conclusion of the therapy period and subject to the availability of the therapist, the child shall spend time with the mother for two (2) hours on one (1) occasion in each fortnight for a period of not more than three (3) such occasions PROVIDED THAT the said therapist shall supervise the time between the child and his mother.
If the said therapist is not able to or be unwilling to supervise the time to be spent between the mother and the child as provided for in these orders THEN in the alternative and pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) the Manager of Child Dispute Services for the Family Court of Australia at Adelaide shall nominate a family consultant to supervise compliance by the parties with the parenting orders made herein and to render to the parties such assistance as may be reasonably required to aide in the carrying out of the said order.
That the mother will at first instance do all things necessary to seek government assistance, benefit or allowance in respect of the costs of the said therapist or the involvement of a family consultant nominated pursuant to s 65L of the Act.
That at the conclusion of the three (3) supervised periods between the mother and the child as provided for herein, the parties shall forthwith enrol in a contact centre for supervised contact to begin as soon as practicable thereafter and at the contact centre that is most likely able to assist with such period of supervised contact to be not less than six (6) in number and if possible at a frequency of one (1) visit per fortnight.
That at the conclusion of six (6) supervised visits at the contact centre the child shall spend time with the mother unsupervised as follows:-
(a)On the Saturday of each alternate weekend from 10 am to 5 pm for six (6) periods;
(b)Thereafter, on each alternate weekend from 10 am Saturday to 5 pm Sunday for a period of six (6) periods;
(c)Thereafter, on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;
(d)As and from the commencement of overnight time between the child and the mother, half of each of the short end of term holidays between such times and dates as may be agreed and in default of agreement the first half;
(e)As and from the commencement of overnight time between the child and the mother on a week about basis throughout the Christmas school holiday period;
(f)Special occasions such as Christmas, Easter, the child’s birthday, the birthdays of the parties, Mother’s Day and Father’s Day as may be agreed.
For the purpose of these orders any handover not at a contact centre or the child’s school shall be inside the Suburb D Street Police Station unless otherwise agreed.
That the father keep the mother advised of the name and address of the child’s treating medical practitioners and any changes thereto and shall advise the mother in writing of any hospital admission in relation to the child and shall provide such authority to enable the mother to contact such treating medical practitioner and obtain information in respect of the child’s health, ongoing medical treatment or other health related matters affecting the child and each of them.
That the parties are restrained and an injunction is granted restraining each of them from abusing, insulting, belittling, harassing or threatening the other or in the presence or hearing of the child or either of them and from permitting any other person to do so in the presence or hearing of the child or either of them.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3218 of 2014

Mr Festa

Applicant

And

Ms Comer

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties are the parents of B born in 2010 (“the child”).
The parties met in 2007 when the father took up accommodation in the mother’s home.
There is some contention between the parties as to the status of their relationship upon sharing accommodation. For her part, the mother asserts that they commenced a sexual relationship soon after their introduction to each other and remained in a de facto relationship until their separation in June 2012. The father denies any formality to their relationship other than that it was clearly sexual.
Following separation the parties had a loose arrangement as to the time that the child would spend with the father. He says that whilst the parties no longer lived under the same roof, he was nonetheless a frequent visitor to the home and over a relatively short period of time the child spent increasingly longer periods in his care. He was concerned as to his observations of the many behavioural and physical problems that he observed were exhibited by the mother and which he considered interfered with her ability to properly parent the child.
When the parties separated the child was 2 ½ years old. The mother says that he was too young to spend significant time away from her care and she also had concerns that the father may decide to retain the child.
At first the child spent relatively short periods of time with the father restricted to a few hours at most. As the father’s circumstances improved and he satisfied the mother of the stability of his accommodation the child spent between two and three nights per week with him, although it varied.
The mother considers that the father was controlling in respect of the time that he sought to spend with the child. She alleges that he would give her little or no warning of his availability and would insist on her agreement to the time that he wished to spend with the child.
The father denies the mother’s assessment of the arrangements and considers that his involvement with the child was necessary in circumstances where the mother appeared unstable and not able to cope with the parenting obligations. He alleges that she suffered from poor mental health and was abusing prescription medication.
In 2014 the mother allowed Mr E to reside in her home on a temporary basis. She was not aware of this person’s history, but it was soon revealed that the child may well be at risk if exposed to Mr E.
Whatever goodwill may have existed between the parties up to that date soon evaporated. In late August 2014 the father retained the child and following what he considered to be irrational and threatening conduct by the mother, he issued proceedings in September 2014.
By Amended Initiating Application filed 12 November 2015, Mr Festa (“the father”) seeks orders that he have the sole parental responsibility for the child, that the child live with him and that the mother be restrained from removing the child from his care with no order that he spends time with the mother.
By Amended Response filed 3 December 2015 the mother seeks orders that the parties have equal shared parental responsibility for the child and that the child spend each alternate weekend and one night in the intervening week with her, together with extended time on school holidays and other special occasions.
The proceedings commenced on 7 December 2015 and concluded with final submissions being received on 24 February 2016.
The parties and the Independent Children’s Lawyer (“ICL”) were each represented by counsel.

DOCUMENTS RELIED UPON

The father relied upon the following documents:-
(1)Amended Initiating Application filed 12 November 2015
(2)Trial Affidavit filed 12 November 2015
The mother relied upon the following documents:-
(1)Amended Response filed 3 December 2015
(2)Trial Affidavit filed 3 December 2015
(3)Affidavit of Dr A (psychiatrist) filed 3 December 2015
The ICL relied upon the following documents:-
(1)Affidavit of Dr C (psychiatrist) filed 16 November 2015
(2)Affidavit of ICL enclosing observational reports of Children’s Contact Service filed 13 February 2015
(3)Affidavit of ICL enclosing observational reports of Children’s Contact Service filed 9 June 2015
(4)Affidavit of ICL annexing correspondence from the Children’s Contact Service dated 13 February 2016
(5)Affidavit of ICL annexing an update psychiatric report dated 4 February 2016 filed 17 February 2016
(6)Report of family consultant prepared pursuant to order made 18 November 2014 dated 25 February 2015
In addition the Court was assisted by each of the counsel preparing an Outline of Case document.

PROPOSAL OF ICL

At the commencement of the proceedings counsel reserved the position of the ICL as to the orders to be sought to the conclusion of trial.
In final submissions counsel provided a Minute of Order summarised as follows:-
(1)That the father have sole parental responsibility for the child.
(2)That the child live with the father.
(3)That the mother be at liberty to send cards, letters and gifts to the child and that the father do ensure they are brought to the attention of and read to the child.
(4)That the mother be entitled to receive direct communication from the child’s school including school reports, photos and newsletters.
(5)That the father provide current photos of the child on an ongoing basis.
(6)That the mother be at liberty to institute further proceedings in the event that she attends upon a mental health professional and engages in “dialectical behavioural therapy” and provided that a report is made available indicating that in the professional opinion of the nominated mental health professional the therapy has “effected a meaningful and positive change in the mother’s ability to respond appropriately to stressors”.
Whilst not the subject of comment, even on the most benign view of the position adopted by the ICL, it could not be contemplated that there would be a resumption of time spent between the mother and the child in the foreseeable future.

BACKGROUND

Whilst the parties agree that they shared accommodation between 2007 and 2012, there is no agreement as to the nature and status of their relationship. The father considers that they were house mates and had a casual sexual relationship. The mother is more strongly committed to the proposition of a de facto relationship.
The mother did not work and was in receipt of a Commonwealth benefit or allowance. She undertook the domestic duties and following the child’s birth was engaged in the child’s primary care.
The father alleges that he was often accused by the mother of family violence against her, but says that the mother would often injure herself with the intention of implicating him as the perpetrator.
The mother denies that she wrongly accused the father of being physically violent and verbally abusive towards her. She believed and hoped that their relationship would change and the birth of the child would cause each of them to focus on his needs.
It is difficult to determine the likely status of the parties relationship and perhaps more importantly whether it was marred by family violence as alleged by the mother, or extreme and manipulative conduct by the mother.
It does seem likely that at least initially the mother had the more stable environment. The father came into her home and following separation he was again homeless for a significant period of time.
Post-separation there is again some uncertainty as to the arrangements for the child’s care.
I consider that the child lived primarily with the mother but spent increasingly longer and more frequent periods with the father. As the mother considered that the father’s circumstances became more settled, it seems that she felt more comfortable for the child to be in his care.
Both parties agree that their relationship following separation was highly conflicted.
The father says that her behaviour became increasingly more volatile and erratic and there were times when he says the mother simply disappeared with the child and would not advise of the child’s whereabouts.
He alleges that the mother’s erratic behaviour attracted the attention of police from time to time and he refers to hospital notes following an admission by the mother in December 2013 as follows:-
(a)The mother says “she has lost the plot”.
(b)The mother was essentially agoraphobic for several years.
(c)The mother has been dealing with anxiety and taking increasing doses of Zanax.
(d)The mother has anger when her drug needs are not met.
The father considers that the notes are consistent with his allegation that she suffers from a long history of mental illness.
Of greater importance is his concern that the mother was aggressive towards the child and spoke in an inappropriate manner.
Each of the parties shared residence with others from time to time. The mother allowed Mr E into her home. Correspondence from Families SA dated 17 July 2014 alleges that Mr E has been determined to be a person who is unsafe to be around children and young people. He had received a “Written Directive”, served on him to stay away from young people.
The mother was spoken to and upon becoming aware of the history of Mr E required him to leave her premises.
Notwithstanding the concerns about the mother’s choice of house mate, her action in requiring Mr E to leave her premises removed any concern of Families SA that she was not able to adequately protect the child.
The mother made complaint that the father’s housemate Mr F had sexually abused the child. The police interviewed both Mr F and the father. No risks were identified and the investigation came to an end.
The father says that in correspondence received by him from Families SA he was encouraged to commence proceedings in respect of the child’s future care arrangements.
That interpretation is not open to the father having considered the correspondence from Families SA dated 17 July 2014 and being annexure “LF4” to his trial affidavit.
The parties agree that in late August 2014 the father did not return the child to the mother’s care. She attributes his behaviour as motivated by a desire to secure a single parent pension. He says that the mother’s behaviour had become quite irrational and obsessive. He was concerned that she might harm the child and following a barrage of text messages on 3 and 4 September 2014 that were clearly outrageous and frightening in their content, the father obtained and intervention order and commenced proceedings for sole parental responsibility and that the child should live with him.
The mother agrees that the text messages were “inappropriate”, but explains her conduct by the father’s deliberate action in not allowing her to see the child for 10 days.
She agreed that she had threatened to kill the father, but upon the charges being reduced to a breach of the intervention order, she pleaded guilty with no conviction being recorded.
The mother had received psychiatric intervention and therapy since 2013 with Dr A.
She does not consider that she poses a risk to the child, whereas the father considers that she lacks insight and any ability to regulate her emotions.
He considers that the child is frightened by the mother’s conduct.
The orders made 18 November 2014 were that the child lives with the father and was to spend time with the mother under supervision initially by a nominated supervisor and then at a children’s contact service.

Supervision of the mother’s time became problematic and at present the opportunity for supervision has been withdrawn following the child’s apparent refusal to participate.

EVIDENCE

The father

The father’s trial affidavit was supplemented by further examination in chief. He referred to the last supervised visit between the mother and the child on 14 November 2015. His evidence was that the child appeared to demonstrate changed behaviour after that visit, in particular in terms of his toilet routine. He was apparently more emphatic that he was to be left alone in the toilet. As will become apparent when the reports of observed interaction are considered, it is alleged that the mother went into the toilet with the child not to assist him but rather to seize an opportunity to inspect the child for any bruising or unusual marks. The father also referred to a barrage of calls and text messages from the mother on 14 and 22 November 2015.
The father was cross examined as to his involvement with the mother and the child during two periods of the mother’s hospitalisation in November/December 2013 and then immediately prior to the institution of proceedings on 5 September 2014.
The father looked after the child during those periods and considered that the child was settled in his care. Initially the father tried to support the mother, but ultimately found the mother’s behaviour confronting.
It was put to him that he had taken advantage of the mother being in hospital to retain the child and issue proceedings. The implication was that the father took advantage of the mother’s absence and that the proceedings must therefore have had an element of pre-meditation.
The father denied the implication and asserted strongly that the action taken by him was made necessary by the mother’s unpredictable behaviour.
He was however aware that the reduced time that the mother had spent with the child and the current position of there being no time would almost certainly induce a state of high anxiety in the mother.
The father confirmed that the child was enrolled in primary school, with the choice of school having been the subject of discussion between the parties. The father has been paying the school fees and his ability to do so is enhanced by his receipt of a single parent Centrelink benefit.
The father has not worked since 2009 when he closed his business.
He agreed that for a period of six to nine months following the parties separation he had been homeless, but that since then he has held stable accommodation.
He conceded that other than the initial incident that resulted in the mother being charged, she has not attended the father’s home, nor to his knowledge committed a breach of the intervention order.
The father was challenged as to his conduct at the time that he withheld the child from the mother, suggesting that his behaviour had been planned and was without proper basis. The father’s response was that his actions should be seen as a reaction to the mother’s verbal abuse of the child and her bizarre behaviour. In addition, the father alleged that the mother had forced her way into his home and caused damage, in particular to a photograph which she smashed. The police were contacted but failed to act.
The father asserted that the child does not want to see his mother and is scared of her. When supervised time took place, the child attended with significant reluctance. The father forced the child to go, but he expressed his fear of the mother.
The father observed that the mother tried to bribe the child with toys and at first he was excited, but then disappointed if the mother did not follow through with the promised gift.
The father denied any suggestion that he did not attempt to assist the mother financially in the period initially following their separation. He countered the assertion by his evidence that he purchased food and other household supplies, but would not give money directly to her for fear that she would spend it on drugs.
The father corroborated the mother’s allegation that he attended at her home in July 2014 in order that she sign a form that could be used to establish that the parties shared the child’s care. The purpose of the form was to assist in obtaining a Centrelink benefit or pension.
The father denied that he attempted to force the mother to sign the form, but rather, she went and obtained the forms and lodged them.
Counsel for the ICL questioned the father as to the child’s reaction in October 2015 having not seen his mother for eight weeks. The father’s observation was that the first visit was positive, but on the subsequent visits the child was reluctantly prepared to go. At first the father encouraged the child, but his observation is that generally the child would say nothing and would not talk about the visit with his mother. Accordingly, the father did not see that there was any scope for him to promote the positive aspects of the child spending time with his mother.
Over time the child’s demeanour changed and he began to talk of being scared of his mother which transitioned into outright refusal to see her.
The father did not consider that he had any option but to acquiesce to the child’s opposition to visits with his mother and accordingly, did little to promote the relationship.
The father appeared unable to concede or accept that at least as at 17 May 2015, the interaction between the child and his mother was at least acceptable, if not beneficial.
In the subsequent visits, there is no suggestion that the child was frightened of his mother and the observed interaction was appropriate. Indeed on 31 May 2015, upon the mother entering the room, the child ran to her and they hugged. It was in the June 2015 visit that the child appeared more reluctant but the father conceded that the visits went reasonably well.
Accordingly and with some reluctance, the father accepted that he had no reason to believe that the child was scared of the mother.
Little information has been provided to the mother in respect of the child’s attendance at school. The evidence suggests that she has not been getting school reports and school photos. The father had not authorised the school to provide any information to her. When challenged by counsel, the father’s current position is that he now has no difficulty about information in respect of the child’s schooling being provided to her and he will facilitate school photos, presents and letters to the child, or any other formal communication.
The father could not be said to be enthusiastic about promoting the relationship between mother and son. He could see no real benefit in the child spending time with her and it was only under cross examination that he made the reluctant concession in respect of school based information being provided to her. Left to his own devices, there is little doubt that he would not have been proactive in providing the mother with information as to matters of education, development and health affecting the child.
Whilst I am prepared to accept the father’s evidence as to the proper basis for him withholding the child from the mother and then the reasonable need to bring proceedings soon thereafter, once the father obtained orders that the child live with him, he demonstrated little enthusiasm for the child maintaining a relationship with the mother. His compliance with orders has been perfunctory and he did not impress as having any real interest in promoting a relationship.

The mother

Her trial affidavit was supplemented by evidence in chief focussing on her history of poor medical and psychiatric health and some evidence of a relatively extensive prescription drug regime.
She gave distressing evidence of a history of having been raped during a home invasion, with the result that she became agoraphobic and was not able to leave her home for 12 months. She accepted that the complexity of her health issues had resulted in a cocktail of prescription medication being taken and at times to excess.
She is however trying to rationalise the extent of her medication and a number of drugs and in particular Zanax which no longer features in her treatment. She is better able to cope, is more stable in her behaviour and she considers that she is able to better regulate her displays of emotion.
She has now been baptized as a Christian.
Under cross examination, the mother was referred to the following paragraph from her affidavit filed 22 September 2014:-
[9]I met the applicant in 2006 and we shared a house for about three years, although we were never really in a relationship. In about 2007, the father started to physically and verbally abuse me, which abuse still continues. I estimate that we only ever had sexual relations on about eight occasions and, in 2009, I became pregnant with my son, [the child] after a sexual encounter with the father when I was drunk.
Clearly, this is contrary to the mother’s evidence that she and the father were in a de facto relationship soon after he took up residence in her home.
The mother admitted that she had lied in her earlier affidavit in denying the existence of a de facto relationship. Either the mother has lied in her current evidence as to the status of the relationship, or the earlier affidavit is a better reflection of the true nature of their relationship.
In June 2014 the mother took the child to the doctor for “anal scratches”. This followed the alleged disclosure by the child that “bad things happen to me at daddy’s”.
The mother conceded that Families SA had attended her home but she doesn’t know why they did so. She certainly did not call them, but denies that it was as a result of any reference by her to the child disclosing that Mr F had behaved inappropriately with him.
The mother ultimately accepted that Families SA advised her of the risk that Mr E had presented. Upon their advice she took steps to remove him from her home and she has had no contact with him since that date.
The mother presented reasonably in her assessment of the ongoing relationship with the father. She said that she did not hate him, but did dislike his actions. Even so, she understood that it was important that she try and get along with him for the child’s sake. She is however suspicious of the father’s motivation and does not consider that he has any respect for her or her relationship with the child.
She did however maintain her belief that the father continues to hurt the child. She was not able to present any evidence or example of how this was occurring, but she appeared unable to be persuaded otherwise.
She considered that the father was an extremely violent man and described how he had assaulted her at the time of separation which caused her to sustain a fractured hip. It was only the intervention of her father that stopped the assault.
Counsel then asked the mother about allegations of assault by her to a female friend of the father’s. She was asked whether in 2014 she punched this person whilst she was in her car. The mother denied that this had occurred and highlighted that there was no police incident report about it. She was not able to deny a subsequent incident where she saw this woman at a delicatessen whilst driving down the road with the child in the back seat. She apparently distracted the child’s attention with her mobile phone, stopped the car and then assaulted this person with a car club-lock. She denied that she had lost control and said that if she had really lost control, then the assault would have been far worse.
Her focus on this woman was because she considered that she was in a relationship with the father. She recounted going to his home at 2 am in the morning, saw this woman’s car and then heard what she considers to be the unmistakable sounds of sexual intercourse. She was concerned as to the whereabouts of the child and considered that he must have been looked after by a neighbour.
The mother’s presentation in respect of this incident could at best be described as bizarre. Her demeanour was suggestive of the mother having enjoyed assaulting the father’s friend and she was clearly obsessed and fixated by the prospect of the father commencing another relationship.
The incident was violent and entirely unprovoked. There is no rational explanation for her conduct. More importantly, I am not satisfied that she has any real ability to reflect upon her behaviour.
That conduct must be seen against the mother’s behaviour following separation where she sent threatening text messages to him.
The mother was shown her criminal history record and was asked to concede that she had been charged with cultivation of marijuana. She admitted that she had smoked marijuana to assist in putting on weight, but denied that the six plants discovered by the police were hers. She was not prepared to concede that any conclusion could be drawn from her plea of guilty to the charge.
She was further challenged as to her allegation that the father had fractured her hip by either kicking her or hitting her with a speaker. Her evidence was unconvincing and I consider it to be unreliable on this topic.
The mother has had her time supervised initially by Ms G and then at a contact service.
Ms G declined to continue in her role as supervisor and as such the only opportunity for the child to spend time with the mother was at the children’s contact service.
After some time the service advised that they were no longer prepared to offer supervision. It seems that at various supervised sessions the mother attempted to check the child’s body for bruises. The supervisor was asked by the mother to confirm her observation that the child had suffered injury.
It seems that the mother was not able to understand the parameters by which she was permitted to interact with the child during the supervised sessions.
In any event, the mother was definite in her opinion that the father had assaulted the child and reports were made to the police and relevant child protection authorities.
The mother was challenged as to her motivation for her continued attempts to inspect and examine the child notwithstanding she was aware of the problem that this created, not just for the contact service, but for continued enrolment in the program.
Notwithstanding the involvement of third parties, there is no evidence to corroborate the mother’s belief.
The mother is critical of the children’s contact service and considers that they have lied in their observational reports. Moreover, she considers that they have failed to discharge their obligation as to mandatory reporting of abuse. Whilst bruises were not discernible to the worker supervising the sessions, the mother makes the allegation of bruising and injury based on what she says were the whispered remarks of the child to her.
It was put to her that it was her continued behaviour and refusal to accept the proper direction of the supervisor that caused the visits with the child to cease. The mother’s response was nonsensical. She insists that the staff saw the bruising, but for reasons that are not explained, have refused to disclose or record their observations.
The mother used every opportunity to scan the child’s body for bruising. In November 2015, she took the child to the toilet but conceded that it was really an opportunity to lift up his top and inspect his body.
She considered that he suffered from a variety of medical conditions. She alleges that the child was clearly constipated, had sustained an injury to his finger and had bruising on his body, but in particular on his right thigh. She was also concerned at his low weight and commented that “his anus was bright red”.
When asked what the mother was doing looking at the child’s bottom and anus, she responded that the child had asked her to inspect his bottom because it was sore.
The mother was not able to control her behaviour and whilst I accept she harbours a genuine belief that the father physically abuses the child, it is an entirely irrational contention.
The mother was keen to demonstrate that the child was failing to thrive in the father’s care, whereas in her care he would be well looked after, appropriately nourished and safe from abuse.
At the end of a visit on 18 January 2015, the mother showed the supervising worker three photos purporting to demonstrate the different injuries that had been occasioned to the child by the father.
The mother’s explanation for taking the photographs to the session was at the suggestion of a police officer.
The mother clearly wanted the worker’s support in circumstances where the child had not made any disclosure or allegation about his father engaging in either sexual or physical abuse.
I find that the mother would use any opportunity to scan the child’s body for bruises.
The mother also conceded that given further opportunity, she would check the child carefully for any sign of injury or assault.
The mother alleged that the child’s underpants had semen stains, but she neglected to provide the undergarment to the police. She said that she had forgotten about the incident until a week later.
She also confirmed that she had taken the child to the general practitioner for a complete check-up and asked the doctor to inspect the child’s anus.
The mother clearly found her lack of involvement with the child to be distressing. It could not be said that she does not love her son, but she appears unable to regulate her emotions and behaviour (even under observation) and seems unable to accept that her conduct has the very real potential to alienate the child from her.
The mother was an unreliable historian and I am unable to give any significant weight to her evidence unless corroborated by other evidence.

The mother’s psychiatrist

The mother has been consulting Dr A (psychiatrist) since 2005. He saw her five times in 2005 and seven times in 2006, but then did not see her until July 2013. Thereafter, the mother has consulted him on a fortnightly basis.
Until August 2014 when the father retained the child, the mother took the child with her to some of her psychiatric consultations.
The psychiatrist’s evidence comprises of various reports annexed to his trial affidavit filed 3 December 2015 and a further report dated 10 March 2015 now being “Exhibit 3” in the proceedings.
Other than the reports of 22 September 2014 and 10 March 2015 which were prepared upon the instruction of the mother’s solicitor, the earlier reports were prepared to assist in the management of the mother’s psychiatric health.
A consideration of the reports reveal that during the currency of the psychiatrist’s involvement with the mother, her life could at best be described as chaotic.
In the report of 10 October 2006 the mother related her involvement in a home invasion in December 2004. It appears that the attack may have been drug related and her life was under credible threat as a result.
Upon observation, the mother had post-traumatic stress disorder and had become agoraphobic.
She had been diagnosed with bipolar disorder, having previously been a patient in a psychiatric institution.
Her life was clearly unstable and she had associated with people who engaged in acts of criminality.
Whilst the initial diagnosis did not support current symptoms of bipolar disorder, she was prescribed medication to settle and moderate her stress and anxiety levels. Such was the level of her anxiety that it was unlikely she would be fit for employment.
The history given by her upon the recommencement of therapy is contained in the report of 2 August 2013. She presented as agitated and anxious. She gave a clear history of commencing a relationship with the father and the events following the birth of the child. As at the date of the report the parties had separated and the child remained in the mother’s care.
Whilst the mother complains that the father did not work, but appeared to have money suggesting that he was dealing in drugs, the following is recorded:-
He is a great dad to [the child], but he criticises me all the time. I am in fear of him coming every time and I can’t get to sleep until the early morning, perhaps 5.00am, when I know that he is coming. My son lies next to me in bed. I have tried to talk to [the father], he says “Just get over it”. He comes every day to see his boy. He may stay from anywhere between ½ hour to 3-4 hours. He is constantly critical of me and quite often if I know he is coming I will vomit. I, myself, have not had any marijuana since February of this year and I do not drink. Anything will set [the father] off – I am not washing [the child] in the bath properly. [The father] threatens to kill me once or twice a week, he hates me…

The report of 22 September 2014, being the first of the medico legal reports, notes that the mother was admitted to the psychiatric unit of a public hospital with the following presentation:-
[The mother] has a multitude of issues. She is losing weight, can’t eat, very anxious, irritable – and feels she cannot manage at present and needs “asylum” for a short period. She has one child, almost 4, the father of the child separated from her… he comes to see his son, abuses her… [The mother] loses control, drives her car too fast, throws things around, and people are concerned about the safety of the child…
Notwithstanding the mother’s anxious and agitated presentation, it appears that she is entirely respectful of her psychiatrist and her behaviour is appropriate, particularly on the occasions that she brought the child to her appointments.
It appears that the psychiatrist took the opportunity to observe the normal interaction between the mother and the child. The following records his observations:-
In the waiting room [the mother] pays attention to her child, interacts with him, may read to him and, as there is usually nobody else accompanying her, she has to bring him into my office during my interviews with her. She asks [the child] to address me, use my name, say goodbye and to thank me. At all times [the child] seems a happy, outgoing child who can speak beautifully, but he is very active and inquisitive and although [the mother] asks him to sit quietly whilst she talks to me he can only do this for ten or twenty seconds at the most and he is then racing around the room fiddling with my books, my papers or my case notes, and [the mother] is constantly requesting him to just sit down for a very short time until she has finished telling me what she needs to, and that the interview will finish “in a few minutes”.
The child was observed to show no fear or hostility towards the mother and appeared comfortable in her presence. He was also polite and seemed unconcerned in the unfamiliar environment. The psychiatrist was also aware that the mother had been smoking marijuana in order to stimulate appetite. Whilst not endorsing the mother’s use of the drug, he did acknowledge that she suffered from anorexia that at least in part may well be stress or anxiety related.
Under cross examination, the psychiatrist conceded that the regime of medication prescribed for the mother was borderline excessive. The mother was generally compliant with medication, but some of the drugs prescribed have the potential to be addictive.
Ideally the mother should not be taking medication at the current levels, but until the proceedings are resolved, it is the opinion of the psychiatrist that her anxiety and stress needs to be controlled.
She has however ceased taking medication for the uncertain diagnosis of bipolar disorder. The psychiatrist considered that she may well suffer from attention deficit disorder and dexamphetamine medication has not been prescribed. The opinion of the psychiatrist is that the mother’s mood appears to be more stable and she feels better.
When asked about his observations of mother and child together, his response was that the relationship appeared “quite delightful”.
He considered that the mother was complimentary of the father and his relationship with the child up until August 2014. Thereafter, the history provided by her was replete with allegation and assertion of violence and other anti-social behaviour attributed to the father.
The focus of cross examination by counsel for the ICL was as to the mother’s ability to control her impulsivity and emotional outbursts. The witness considered that the mother held a genuine belief that the child had been physically abused by the father, that there were photographs evidencing the abuse and that she had reported her concerns to the relevant child protection authorities.
When asked the direct question as to whether the witness considered that the mother would be able to control her behaviour, his response was that the mother appears to have made significant improvements or recent date consistent with the reduction and modification of her extensive medication regime, but conceded that the resolution of the proceedings will be a significant factor.
Whilst not agreeing that the mother was necessarily delusional, the witness considered that treatment including medication to ameliorate the symptoms of psychosis could be put in place if the mother’s behaviour and irrational belief that the child has been the subject of abuse at the hands of the father does not moderate.

Dr C

The ICL called evidence from Dr C who had been asked to prepare a report by the mother’s solicitors in 2015. The first report dated 14 May 2015 appears as an annexure to his affidavit of 16 November 2015. A follow up report appears as annexure “B” to the affidavit of the ICL filed 17 February 2016.
The mother’s history given to this witness is not dissimilar to that as recorded by her treating psychiatrist.
She considered that the father had “kidnapped” the child from her and this was the catalyst for her using marijuana.
She was not complimentary of the father in interview and said that he was a drug dealer who had been recently arrested by the police. She highlighted belief that he was and had been violent to both the child and to her and was not properly caring for the child who presented at the contact centre with “yellow teeth, head lice and ears filled with wax”. She also considered that the father was schizophrenic.
She considered that his application seeking that the child live with him and spend no time with the mother was because of his personal vendetta against her and not because he had any genuine care for the child. When describing the relationship with the father, the mother considered that he had been a housemate, that they were never in a relationship but had engaged in casual sex. Clearly that history is different to the mother’s assertion that the parties were in a de facto relationship.
The witness found her to be a “woman who holds to a strong belief and a narrow perspective and finds it difficult to look at different perspectives. Consequently her view point appears to be strongly held, and this is a product of personality and not evidence of delusional disorder”.
The initial opinion of the witness was that the mother had a poor capacity to regulate her emotions or thoughts. Her behaviour was likely to be “impulsive and appear unpredictable to people”.
Not dissimilar to the mother’s treating psychiatrist, the witness was concerned as to the extent of the prescribed drug use and given the cocktail of medication that had as its focus the control of anxiety symptoms, the extent of the use suggested to the witness that there was a “chronic pattern of poor capacity to regulate emotions and impulse”.
The witness did not agree with the mother’s treating psychiatrist that a diagnosis of borderline personality disorder should be ruled out. He considered that this would be the most likely diagnosis. The mother’s poor capacity to regulate her impulsivity and her history of having been the victim of abuse has resulted in her being unable to consider the topic of abuse other than irrationally. She remains fixated on her view that the child is at risk in the care of the father.
His recommendation was that there should be an immediate modification of her medication requirements and that she should seek counselling through a psychologist which should also address any alcohol abuse.
The witness was not satisfied that as at May 2014 the mother was able to be sufficiently calm and composed that she would not expose the child to unnecessary fear during periods of contact between them.
Dr C was provided with a copy of the evidence of the mother’s treating psychiatrist. The witness recognised that the treating psychiatrist had a positive view of the mother’s capacity as a parent, but that there were underlying personality difficulties.
So entrenched were the mother’s behaviours that the witness did not consider that there would be a “cure of her disorder”. Ongoing therapy and counselling may however ameliorate the more florid aspects of the mother’s presentation and it was seen by him as a “good and worthwhile endeavour” that the mother may well benefit from better understanding coping strategies. He opined that the appropriate therapy would be a branch of cognitive behavioural therapy namely “dialectical behaviour therapy”.
As at February 2016, the mother had been informed that because of the child’s refusal to spend time with her at the children’s contact service, the appointments would be terminated. Obviously, it was considered likely that the mother would be distressed and upset at the last remaining opportunity to spend time with her son was no longer an option.
The witness records the following:-
I note your comment that she was disappointed at not being able to spend time with [the child]. She was reasonable in her response to the contact period not proceeding. The recent information suggests an improvement in emotional regulation capacity.
Under cross examination, the witness reaffirmed his support for the mother’s engagement in dialectical therapy. Whilst he did not think that the mother would make the necessary commitment, nonetheless it was an appropriate course of therapeutic intervention.
The witness was shown the most recent Anglicare report detailing the observations of interaction between the child and the mother. It was agreed that the mother’s reaction was important, particularly in a stressful situation. It was noted that the mother had been able to behave appropriately and the witness conceded that there was some comfort that the mother was able to moderate her behaviour. Indeed, I am satisfied that there are significant indicators of improvement in the mother’s current presentation.
I prefer the evidence of this witness to that of the mother’s treating psychiatrist in relation to a diagnosis of the mother’s current mental health and level of function.
It is not suggested by this witness that the mother is delusional, but rather, she is fixated on her belief that the child is at risk in the care of his father.
Notwithstanding this criticism, I find that the mother’s continued involvement with her treating psychiatrist is of ongoing benefit. There is recognition that the mother’s medication regime has been excessive and an adjustment appears to have resulted in the mother exhibiting a more calm disposition.
It is significant that her conduct upon the advice that her son did not wish to spend time with her did not result in her exhibiting any inappropriate behaviour. She behaved reasonably and without rancour.

Family consultant

Following an order made on 18 November 2014 pursuant to s 62G(2) of the Act, a family consultant was appointed and following an assessment a report was published dated 25 February 2015.
The report provides a history to the dispute and identifies the issues as follows:-
·Whether there has been a history of domestic violence perpetrated by the father against the mother.
·The extent to which both parties have engaged in drug use.
·The safety of the child in the separate environments of each of the parties.
·The concern as to the mother’s mental health and her ability to act appropriately when spending time with the child.
The mother did not impress during her interaction with the family consultant. He records that she was “emotional volatile” and appeared to be disregulated and cognitively disorganised.
She impressed as being fixated with her belief that the father had been physically violent to the child and that he was not looking after the child’s physical needs.
After an hour the family consultant records that the mother’s emotional regulation “had seriously deteriorated”.
The family consultant was influenced by the observational reports from the children’s contact service as to the mother’s behaviour and her insistence (not corroborated by the staff) that there was clear evidence of bruising on the child’s body.
It was as a result of the mother’s uncontrolled behaviour and her inability to regulate her emotions that a decision was made not to proceed with observed interaction. That decision further distressed the mother and did not aide her ability to regain control and composure.
The presentation of the mother was to be contrasted with the observations of the father namely, that he was cooperative and stable. The father observed that since the child had been in his care he was much happier and more settled. He was now at school and the reports were satisfactory.
At the time of the report the mother’s time was being supervised by Ms G. The father considered that the mother’s behaviour inevitably would alienate both her supervisor of choice, but ultimately, her involvement in the children’s contact service. As is apparent, the father’s intuition was prophetic.
The family consultant made contact with Ms G who advised that she had supervised time between the child and the mother on 21 November 2014, 19 December 2014, 2 January 2015 and 9 January 2015 and 23 January 2015.
The mother’s behaviour both during the contact and separately from the contact was challenging.
On one occasion the supervisor was out of hearing range of the mother and child, upon her return the mother told her that the child had made an allegation that he had been abused by the father.
On a later occasion the mother complained that she had been the subject of a recent threat by the father. The supervisor made no observations that would corroborate the mother’s allegations.
It was only after the mother had obtained the supervisor’s phone number against her wishes and then had proceeded to contact her notwithstanding a request from the supervisor not to do so, that she determined to suspend her involvement.
The summary of the supervisor is recorded at paragraph 50 of the report:-
[Ms G] concluded that most of the time that [the mother] and [the child] spent together while she supervised was enjoyable for both of them, and she perceived that [the child] was not frightened of [the mother].
In interview, the child appeared unwilling or unable to respond to questions put about his time with his mother. The family consultant records that his answers were either monosyllabic or that he refused to discuss his mother.
The child reacted warmly to the father, but unfortunately there was no observed interaction between the child and the mother.
The family consultant recommended that the child live with the father, but spend time with the mother only in circumstances where there is evidence to suggest that “she can maintain a competent level of emotional behavioural regulation whilst spending time with [the child]”.
Whilst it may seem that the family consultant was critical of the mother, it could not be said that he was unreservedly complimentary in respect of the father. He considered that the father had very limited insight into the importance of the child having a relationship with his mother, or indeed, that the child may well have happy memories of his engagement.
Somewhat surprisingly, I did not consider that the family consultant had given much regard to the benefits to the child of having a relationship with his mother even in circumstances where her behaviour was challenging. It could not be said that there is no advantage to this child knowing about his mother and having a relationship, but rather, the terms and conditions by which that could occur without the child being put at emotional risk arising from the mother’s conduct.
It cannot be the case that simply because the mother suffers from mental illness that it is a barrier to there being a relationship between the mother and the child providing the environment is one of safety.
Given that the report was a year old, I am of the view that the evidence of the family consultant is of limited value, although I accept his observations of the presentation of the parties, the child and his interaction with Ms G, the mother’s nominated supervisor.
The concern that arises in respect of the breakdown of the relationship between the mother and the child is heightened by my finding that the father has little or no respect for the mother and is unlikely to either recognise or accept that whatever his view of the mother might be, there is an advantage in the child having a relationship with her.

PRINCIPLES RELEVANT TO PARENTING ORDERS

The child currently resides with the father. The father is not supportive of any relationship between the mother and the child and his willingness to comply with orders is perfunctory at best.
The mother continues to be fixated in her belief that the child is at risk in the father’s care and appears to not now accept that which she was prepared to recognise at an earlier time, namely, that the child has a good relationship with him.
There is little or no ability of the parties to communicate with each other nor a willingness to do so.
They are entirely disrespectful of the importance of this child having a relationship with both of his parents.
They each lack insight as to the broader needs of the child. The father presents as an unsophisticated person with a narrow and closed perspective on the appropriate parenting parameters for the child. He considers the mother’s behaviour to be too problematic and is unlikely to promote any relationship between the child and his mother.
For her part, the mother struggles with accepting the reality of the situation and the difficulty is that there now remains few options to re-establish a relationship with the child in circumstances where her emotional regulation can be appropriately monitored.
The parties are not agreed as to parental responsibility, exacerbated by the likely future circumstances namely, that for the foreseeable future the mother’s engagement with the child may be peripheral at best.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the direction contained in s 60CC(2A) and have regard to the allegations of the mother that whilst together, the father was the perpetrator of family violence and that he continues to present a risk to the child.
The allegations of the mother are not supported by either the family consultant, or the evidence given by each of the parties. I do not consider that the father presents a risk to the child.
There is however a risk in respect of the child coming into contact with the mother that she will not be able to regulate her behaviour, nor restrain herself from attempting to corroborate her irrational belief that the father continues to harm the child.
The issue in this case will be whether circumstances exist and options are available for there to be a relationship between the mother and the child, but that there be sufficient checks and balances put in place to minimise the risk to a level that it is acceptable.
Section 65DAA(1) provides:
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:-
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents: and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

I am required to bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made.
I am obliged to consider circumstances where I make an order for equal shared parental responsibility whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(c). The Act provides assistance in the determination of “reasonable practicality”. In terms of the provisions of s 65DAA(5) namely, that the Court must have regard to:
(a)how far apart the parents live from each other;
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or spending substantial and significant time, with each of the parents; and
(c)if the parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Accordingly, I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child or children from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC is to be utilised in order to determine the question about best interests and whether the issue of an order for equal time and/or substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).
I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, there is now no requirement to consider s 65DAA(1)(a) and s 65DAA(1)(b) in any particular order.
The importance of her Honour’s remarks is to focus judicial attention upon the practical reality of each of the parties proposals and the consideration of the primary and additional considerations as are appropriately applicable.

Parenting Considerations

In Mazorski & Albright [2007] FamCA 520 Brown J commented on the definition of “meaningful” and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for the time with children to be, where possible and in their best interests, substantial and significant.
Whilst of limited assistance, it is reasonable based upon the evidence of the family consultant to find that there is advantage to this child of having a relationship with his mother. That relationship is either actively not supported by the father, or is given little or no consideration or weight. It is not that the mother’s mental health is in and of itself a barrier to her having a relationship with the child, it is whether in the circumstances of this case there can be found a practical resolution to the very real concern arising out of the mother’s inability to control her behaviour and conduct.

Need to protect the child

The evidence does not support a finding that the child is at risk of physical harm from either of the parties. Prior to the child going into the father’s sole care, there was no evidence that the child was neglected or abused in the care of the mother.
There were concerns that both of the parties associated with persons who themselves presented a risk either because of their physical or criminal conduct. There are allegations that both parties have either consumed drugs or associated with persons who did.
It is likely that the father now provides a safe environment for the child. That finding is open to me only because the family consultant appeared impressed with the relationship between the father and the child and there did not appear to be any aspects of adverse behaviour that would suggest all is not well in the father’s home.
There was however little or no evidence before the Court as to the father’s current circumstances. That is regrettable. The focus on the mother’s circumstances had the unfortunate consequence of providing the Court with little assistance as to the father’s circumstances and how that impacts upon his ability to care for the child. There was no explanation as to the father’s potential for employment, if so, matters of supervision and whether there are physical or other impediments that prevent the father from working. There was no issue as to the father’s ability to financially provide for the child simply because nothing was put before the Court in that regard.
The mother has not had unsupervised time with the child since 2015. Much is known as to the mother’s interaction by reference to the extensive observations of supervised contact. A consideration of some of the observational reports highlight the mother’s predicament and the resulting concerns of those involved with the mother’s time with the child.
The mother spent supervised time with the child on 18 January 2015. It was recorded that the mother arrived at the service displeased with their policy that she was required to see the child under supervision.
Her time with the child was however affectionate and loving. On this occasion the interaction went well and the child appeared to be affectionately engaged with the mother. After the session had concluded the mother broke down and was seen to be crying loudly and making allegations that the father had abused the child.
On 31 January 2015 the mother’s initial presentation was again abusive and angry.
The mother was insistent that when she saw the child, she would tell him not to call any other person “mum”. She had to be reminded that she needed to more child focussed in order not to distress the child and there was some concern as to whether the session could take place given the mother’s obvious distress.
During a moment of inattention, the mother had put on a spider man mask. Whilst this appeared to be a relatively innocent action, there was a more sinister undertone in that the word “spiderman” was the safety word that the child had been told to say if he felt distressed or upset.
When the focus is upon the relationship between the mother and the child, it is again one of affection. The child did not appear to be frightened of his mother, but was rather somewhat overwhelmed by her florid behaviour.
It is during this visit that the mother seemed unable to contain herself and focussed on whether marks she believed she saw on the child were consistent with a bruise. The subsequent observed visits had a similar tenor. It appears that whilst the child clearly loves his mother, her behaviour worries him and results in avoidance behaviour.
Following orders made that there be further observed interaction, the service was withdrawn by letter dated 9 February 2016 advising of the decision to withdraw the service as the child had refused to participate in four supervised contact visits.
It could not be said that the mother’s conduct resulted in the child’s refusal. It may be that the child was distressed by his recollection of his mother’s conduct, or that it was simply too hard for the child to continue. It is difficult to know the basis behind the child’s refusal to attend, but I do not accept that at age six, the reluctance of the child to engage with his mother is the consequence of careful and mature reflection.
The child’s refusal to see his mother does not appear to be a matter of concern to the father. It is unlikely that the father has invested any energy in promoting the child’s relationship with his mother.
It is not suggested that the child is at risk. The time spent was the subject of strict supervision.
There was nothing for the child to fear from his mother and whilst there was some reluctance to engage at times with her, it could not be said that her behaviour was such that would justify fear of her.
It might also be the case that the mother’s behaviour from time to time was confronting to the child, but I am not able to find that at any stage during the supervised visits her behaviour could be described as abusive.

Wishes of the child

I do not consider that significant weight should be placed on the child’s wishes. He is currently aged six years and I have found that any engagement with his mother is not with the fulsome support of his father.
He could have little insight into his mother’s medical and psychiatric history and whist her conduct may be confronting for the child, it must be considered important that if at all possible the mother should maintain a relationship with the child even though for him it is easier to not see her.

The nature of the relationship between the child and the parties

I have no doubt that each of these parties love their son. All observations of the father with the child are positive and the warmth with which the father and son were reunited during the assessment undertaken by the family consultant is a clear indication of the relationship that exists between them.
The same could not be said between the child and his mother. They were fundamentally separated when the child was about four years of age. His recollections of his mother in circumstances other than the artificial environment of supervision is likely to be highly limited.
The very nature of supervised time and the infrequency with which it occurs is in and of itself off-putting to a child of this age.
It is difficult to assess the child’s level of feeling about his mother. There has been no attempt to do so. The family consultant did not consider it appropriate to proceed to the observed interaction faze of the assessment notwithstanding the child indicated a preparedness to do so subject to having first seen his father.
The mother’s conduct may be off-putting, the child may also be embarrassed as to his lack of involvement with her. As time passes, the child’s position becomes more entrenched.

Involvement with the child

The father has clearly made all of the day to day and long term decisions in respect of the child. The mother has not been consulted and has had little or no involvement with the child. That is regrettable but in the circumstances of this case inevitable.
The mother seeks to spend significant and substantial time on an unsupervised basis with the child. That outcome is resisted by the father, but also strongly by the ICL.
Whilst not the mother’s position, it is unrealistic for her to expect that there will be a change of the primary care of the child to her or that she shall spend time with the child on an unsupervised basis. The risks are simply too great in terms of the fragility of any perceived improvement in the mother’s ability to control her emotions and the negative attitude and view of the father.
Nothing however speaks against the mother spending time with the child providing there is adequate and proper supervision.
Even though the child is reluctant to engage with the mother, I am not satisfied that the benefits of a meaningful relationship between a child and his mother should be so easily discarded upon the uninformed view of a child of this age.

Practical difficulties

The significant hurdle to be overcome in this case is that as a result of the mother’s conduct from time to time, the options for supervised time are limited. The mother does not have close friend or family who would be able to supervise time. The mother’s nominated supervisor Ms G declined further involvement following the mother’s inappropriate conduct in securing her telephone number and then ringing the supervisor after hours. Supervision at a children’s contact service is at best a stop-gap measure. Even that has been problematic and the service has declined to be further involved, initially because of the mother’s behaviour, but then consequent upon the child’s refusal on four consecutive occasions to engage with her.
Even the family consultant did not press the child to see his mother.

Risk of emotional abuse

Section 60CC(2)(b) provides that the Court must consider as a primary consideration:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am not certain that the risk to the child as presented by the mother could necessarily be considered as emanating from “abuse, neglect or family violence”.
The mother has a history of adverse mental health which at present manifests itself in her belief that the father poses a physical risk to the child. The mother’s overtly emotional and at times bizarre behaviour has the potential to impact upon the child to his detriment.
The issue in this case is the assessment of the risk presented by the mother and whether, if unacceptable, measures can be put in place that would ameliorate the risk.
The Court is guided is by the considerations found in M v M (1988) 166 CLR 69 where their Honours Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ said at p 76-77:-
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
Further, at p 78 their Honours said:-
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A (17)), “an element of risk” or “an appreciable risk” (In the Marriage of M (18)), “a real possibility” (B v B (Access) (19)), “a real risk” (Leveque v Leveque (20)), and “an unacceptable risk” (Re G (a minor) (21).
(footnotes omitted)
Notwithstanding my hesitation in respect of the extent to which s 60CC(2)(b) is applicable to the concerns raised in respect of the mother’s conduct in this case, nonetheless the issue of the emotional impact upon the child arising from the mother’s conduct is able to be considered pursuant to s 60CC(3)(f) and (m).
Whilst not supported by the father, it could not be said that he vociferously opposes supervised time between the mother and the child. He relies on the obvious need for supervision and what appears to be the reality of the mother’s predicament namely, that all option for supervision seems to have been exhausted.
The orders sought by the ICL attempt to recognise the practical reality of the situation namely, that no other facility exists for the mother’s time to be supervised, but should the mother successfully undertake an extensive course of psychiatric therapy then she should be at liberty to institute further proceedings.
The ICL seeks that a relationship be maintained with the child by giving the mother the opportunity to forward letters, gifts and presents to the child and to be kept informed of the child’s academic progress.

The issues that arise from long term supervision

At present there is evidence that the child is resistant to any attempt to see his mother. The child is however only six years of age. I have found that any opposition by the child is not based upon the mature reflection or consideration of the issues, but rather, in the absence of any genuine support from the father, it has become too hard for the child to engage with his mother.
There is no evidence that has been presented as to the effect on the child if he were required to spend time with her. I have no doubt that it is easier for this child to behave in a way that persuades others to take the path of least resistance, namely, not to pursue supervised time as against the benefits to the child of having a meaningful relationship with both of his parents providing it is undertaken in a safe environment.
The paramount consideration must always be the best interests of the child. The history of this matter is that the mother cared for the child for the first four years of his life, and whilst there appeared to have been some level of emotional detachment by the child, nonetheless, the observations of the early supervised visits were supportive of a beneficial relationship existing.
I do not resile from my finding that the mother holds a deep love and attachment with the child notwithstanding that it is at times clouded by her perception of others arising from her impulsive conduct.
Even assuming that arrangements could be made for the mother to spend time with the child in a supervised environment, consideration needs to be given to the desirability of an order for indeterminate and ongoing supervision.
In Moose & Moose (2008) FLC 93-375, May J at [8] – [10] said:-
[8]Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have (sic) been no change in circumstances (Rice & Asplund).
[9]…
[10]In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders…
Her Honour, in an earlier case of Fitzpatrick & Fitzpatrick (2005) FLC 93-227 considered in a case where there was the potential for an unacceptable risk unless the father’s time with the children was supervised held that:-
…the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests.
While supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional wellbeing cannot be ignored…

That practical difficulty is exacerbated in this case where I have found that the father’s support for any relationship between the child and the mother is at best perfunctory.
The focus is therefore whether opportunity exists for the mother to spend time with the child in a supervised setting and whether realistically it could be reasonably contemplated that the mother’s time with the child could be in an unsupervised environment.
Even if supervision could be readily arranged, I would decline to make an order that would see the mother’s time with the child supervised indefinitely. That would not be in the best interests of this child. There would be insurmountable practical difficulties in it being arranged in circumstances where the mother regrettably is not able to provide any evidence of any person or organisation who would be ready to support her.

Parental responsibility

It is only the mother who seeks an order for equal shared parental responsibility for the child. Both the father and the ICL support an order that the father have sole parental responsibility.
The evidence does not support the mother’s ability to deal rationally with the father in terms of his primary care of the child. At best and for a significant period of time, the mother’s time with the child would be the subject of supervision and of limited duration if such an outcome is a practical option.
There is real potential for the mother to interfere with the child’s health and education and until and unless she attains a level of emotional stability and control, there is no circumstance where the Court could have confidence that the parties could communicate with each other at anything approaching a child focussed level.
Moreover, the evidence supports a finding that the father shows little or no interest in engaging with the mother or of supporting any relationship between her and the child.
The evidence does support a finding that the father is able to adequately care for and maintain the child to the extent that the child exhibits no adverse behaviour at school, this would appear to be corroboration for that finding.
If there is to be a relationship between the mother and the child, it can only be fostered in an environment free of conflict and hostility. That is best achieved where the issues between the parties are kept to a minimum.
The best interests of the child are likely to be served by the father having sole parental responsibility in respect of the child’s care, welfare and development, but with an obligation to provide appropriate information to the mother.

Proposal put forward by the ICL

Whilst the ICL does not go so far as to contemplate orders that would see the child spending time with the mother, it is his position that providing she undertakes a course of psychiatric therapy consistent with the evidence of Dr C and upon the provision of a report that “the therapy has effected a meaningful and positive change in the mother’s ability to respond appropriately to stressors”, then she should not be prevented from bringing further proceedings.
There is much in the proposal of the ICL to commend itself to the Court. It focusses on what is really the impediment to the re-establishment of a relationship between the mother and the child namely, her ability to regulate her emotional overlay and outbursts, her physical behaviour and what appears to be an inability to accept that the father does not pose a physical risk to the child.
Absent those issues, there is little evidence to suggest that the mother should not spend time with the child.
The difficulty however is that since late 2014 the mother’s time with the child has been fragmented and currently suspended, not as a result of the mother’s behaviour but rather, the child’s refusal to engage with her.
It is proposed that the mother will engage in 20 therapeutic sessions of “dialectical behavioural therapy”.
The mother has little or no financial resource to be able to effect extensive therapeutic intervention and accordingly she would have to rely upon whatever government assistance is available. To the extent that a mental health plan enables her to have 10 therapeutic sessions in any 12 month period, it could well be more than a year before the mother would satisfy the first pre-condition of the ICL’s proposal namely, to undertake a certain number of visits and to receive a report indicating that she has developed a level of insight and restraint.
That would then see the mother bring an application with all of the inherent delays this would entail.
It could easily result in the mother having no effective relationship with the child for such an extended period of time that any attempt to re-establish the relationship thereafter irrespective of improvement in the mother’s outlook, insight and behaviour would ultimately be a barren exercise.
The practical difficulty with the proposal of the ICL is that it may well be impossible to resurrect any relationship, particularly in circumstances where the child is currently reluctant to engage with his mother and there is unlikely to be any support from the father for that to occur.

CONCLUSION

The question therefore is whether the benefits of a meaningful relationship with one party outweigh the potential harm that could be caused to the child by re-establishing the relationship in what may well be a prolonged absence.
It is accepted that for there to be a meaningful relationship it must be of benefit to the child.
In Cotton & Cotton (1983) FLC 91-330 Nygh J said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even if not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Baglio & Baglio [2013] FamCA 105 Murphy J considered that it was important if there was a chance of a meaningful relationship that could be beneficial to the child. What has not been ventilated in the course of the proceedings is what would be the effect on the child of the absence of a relationship with his mother.
I reject any contention that the child could have any concept of that long-term effect.
At [14] his Honour said:-
…the assessment of best interests is to be conducted within the statutory objective of a maximising parental involvement consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that “…[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require… Best interests are values, not facts”.
His Honour also considered that the child’s rights were to be considered by reference to the Part VII objects of the Act.
I do not consider that the evidence as presented supports the contention that there is no advantage or benefit to the child of having a relationship with his mother. Nor do I consider that because the mechanics of arranging initial supervision necessary to re-establish a relationship are difficult, I should find that it is insurmountable.
What is actively under consideration is the very real probability that unless efforts are made to re-establish the relationship, it may well be lost entirely to the detriment of all involved, but in particular the child who has a right to know and maintain a relationship with his parents.
I am persuaded that the child should live with the father and he have sole parental responsibility for the child.
I consider that the mother should undertake the therapy as promoted by Dr C, but at the conclusion on a report being provided to the ICL that suggests that the mother has gained insight into her behaviour and emotional regulation, the parties and the child shall attend upon a therapist to re-instate the relationship between the mother and the child, whereupon the said therapist shall supervise time between the mother and the child, but if the therapist is not prepared to undertake the observed interaction, then a request shall be made to the Director of Child Dispute Services, Adelaide Registry to assist the parties pursuant to s 65L of the Act.
The parties would then re-enrol at a children’s contact centre for not less than six supervised contact periods and at the successful conclusion thereafter, the mother will spend unsupervised time with the child.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 June 2016.

Associate:

Date: 2 June 2016

[2016] FamCA 430

2 June 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies