Fray & Witton

[2021] FamCA 407

FAMILY COURT OF AUSTRALIA

Fray & Witton [2021] FamCA 407

File number(s):	NCC 3516 of 2018
Judgment of:	CLEARY J
Date of judgment:	2 June 2021
Catchwords:	FAMILY LAW – CHILDREN – interim parenting orders for one child, a girl aged almost 4 years – where the application for interim orders has arisen in the context of an adjourned trial – where the mother has had complex medical and mental health disorders – where the mother is pregnant at this time with a high-risk pregnancy – where the father has had significant mental illness diagnoses – where previous interim orders were made for the child to live with the mother – where the mother moved to live with the maternal grandparents and later, to her own home – where the child remains living with the maternal grandparents – where the mother sees the child every day – where the single expert recommends if there was to be contact between the child and the father it should not start before age 8 and that it should be between 2 and 4 occasions per year, in the presence of a supervised adult – where the father would need to demonstrate cooperation of drug testing, compliance with treatment, continuation with his psychologist, case manager and therapist, being stable for a number of years and that he be under the care of psychiatrist – where the single expert will need to consider new circumstances and if they affect his further recommendations – where there is insufficient evidence to justify the introduction of the child to the father face to face at her young age which could do harm and destabilise the child when her life is changing in several ways – orders are made pending further order varying the order for residence to the maternal grandparents, the child spend time with the mother as agreed, for the provision of cards and gifts from the father to the children but no face to face time.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	38
Date of hearing:	1 June 2021
Place:	Newcastle
Counsel for the Applicant:	Mr Willoughby
Solicitor for the Applicant:	Hannaway Lawyers
Counsel for the First Respondent:	Mr Bateman
Solicitor for the First Respondent:	Carolyn Kelly Legal
Counsel for the Second Respondents:	Not Applicable
Solicitor for the Second Respondents:	Not Applicable - Self Representing
Counsel for the Independent Children's Lawyer:	Mr Boyd
Solicitor for the Independent Children's Lawyer:	Joplin Lawyers

ORDERS

NCC 3516 of 2018

BETWEEN:

MS FRAY

Applicant

AND:

MR WITTON

First Respondent

MR COLLIER AND MS B FRAY

Second Respondents

JOPLIN LAWYERS

Independent Children’s Lawyer

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	2 JUNE 2021

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1.The child X born … 2017 (“the child”) shall live with the Second Respondents.

2.The Second Respondents have sole parental responsibility for the child subject to the ongoing requirement to keep the parties, [including the Independent Children’s Lawyer], informed of any exercise of that responsibility in respect of long term decisions within 14 days of any such decision having been made.

3.The child spend time with the mother as agreed between the mother and the Second Respondents.

4.The child shall spend no time and have no communication with the First Respondent father, save and except that the father is at liberty to send letters, cards or gifts to the child at a frequency of not more than 4 occasions per year. The Second Respondents are at liberty to inspect the letters, cards or gifts prior to providing them to the child and in the event the Second Respondents consider the letter, card or gift to be inappropriate or unsuitable to be given to the child, they are permitted to refuse to provide the letter, card or gift to the child and must return the letter, card or gift to the First Respondent father.

5.The mother/maternal grandparents shall notify the other parties of any medical emergency or accident suffered by the child requiring hospital treatment.

6.The Second Respondents shall keep the other parties informed of any future diagnoses of the child and her ongoing progress and treatment.

7.Each of the parties is restrained and an injunction is granted restraining each of them from:

a.Relocating the residence of the child from the Mid-North Coast of NSW, without the prior written consent of each of the other parties;

b.Altering the child’s surname without the written consent of the parents.

8.Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

9.Each party is restrained from causing or permitting the child to be known by any other surname other than her given birth surname.

10.Each parent is restrained from using illicit substances.

11.The Second Respondents shall remove the child from the presence of any person using or affected by illicit substances.

12.Each party is restrained from allowing the child to have any access to social media sites.

13.A copy of these orders is to be provided by the Registrar of this Court to the Department of Communities and Justice and to NSW Police.

14.The Independent Children’s Lawyer shall provide a copy these orders to the child’s preschool/day care.

15.The father shall furnish the Independent Children’s Lawyer with urinalysis drug screens on the request of the Independent Children’s Lawyer.

16.This matter is listed for further directions on Wednesday 27 October 2021 at 9.30 am.

NOTATION

A.       The father expressed willingness to be bound by the following proposed order:

“The father shall provide proof of his compliance with the following:

-Continued therapy with Mr L or an alternative psychologist approved by the Independent Children’s Lawyer;

-Continued attendance at regular appointments with his General Medical Practitioner and any treating psychiatrist;

-Compliance with medication as prescribed.”

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

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

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

ORAL REASONS FOR JUDGMENT

CLEARY J

1. These are applications for parenting orders in respect of one child, X, born in 2017. She is almost four.

   THE PARTIES

2. The applicant mother is 28 years of age. She has had complex mental health, psychological and metabolic disorders, including autism, depression and anxiety, diabetes and anorexia since childhood. She is pregnant at this time. The pregnancy is a high-risk one due to pre-eclampsia, but she is otherwise doing well.

3. The respondent father is 45 years of age. He has had significant mental illness diagnoses, including schizophrenia, borderline personality or complex Post Traumatic Stress Disorder and underlying Graves’ disease, an autoimmune disorder since childhood. The father tendered into evidence a hair drug test, which is negative for illicit drugs.

   BRIEF HISTORY OF RELEVANT EVENTS

4. The parties maintained a relationship for about four or five years between 2013 and 2018. The subject child is the second child of the parties’ relationship. Their first child, Y, now five years and eight months, was relinquished into foster care soon after his birth in 2015. Both parties have maintained a relationship with Y with the assistance of community services. The father is hopeful of moving to C City in the D Region where Y is living.

5. The subject child was the subject of a care order made for 12 months in the F Town Children’s Court. That ended in November 2018.

6. The maternal grandmother is 49 and the step maternal grandfather is 59. He is in full-time employment. All parties live in F Town on the mid-north coast of New South Wales.

7. After the separation of the parents in October 2018, the mother moved to live with her parents, and later, to her own home. The subject child lives with the maternal grandparents. The mother sees her every day.

8. On 9 November 2018, these proceedings commenced by the mother filing an Initiating Application in the Federal Circuit Court (“FCC”) after an episode where the child was retained by the father and thereafter, the father came to the home of the maternal grandparents and would not leave until police arrived.

9. On 25 March 2019, interim orders were made in the FCC for the child to live with the mother. There were other orders. The proceedings were then transferred to this Court. The father is reported to have been aggressive on that event in the FCC, with himself and his father removed by security.

10. The mother was, on her own account, unnerved by this episode. The father has, through his affidavit expressed regret for his behaviour on that occasion.

11. On 28 June 2019, the mother filed an Amended Initiating Application seeking an order restraining the father from approaching herself or the child, and that there be no time or communication for the child with him.

12. On 4 July 2019, a Children and Parents Issues Assessment was released. In the evaluation section of that report,[1] there was a recommendation that the father not come into contact with the child until further investigation by way of a full Family Report:

    [1] Children and Parents Issues Assessment dated 4 July 2019, pars 57-62.

    [57.]At almost 2 years of age, X is highly vulnerable as she remains completely dependent on her caregivers to meet all of her social, emotional, physical and Cognitive needs.

    [58.]It is of concern that on either version of events X has been exposed to a chaotic and turbulent environment where she has experienced one or both of her parents as unpredictable, inconsistent and/or frightening at times. This has occurred during a critical phase for X’s cognitive, social and emotional development. Given this, it is essential that X is now provided with a reparative environment which is focused on ensuring her physical and emotional safety and which acts to repair any disruption which has occurred in the security of her attachment relationships.

    [59.]Although the father identified concerns for X in the current care of the mother, it would that FACS are satisfied that the mother is providing safe and appropriate care for X. It would be of benefit, however, for the Independent Children’s Lawyer to peruse the FACS file to confirm this information. If that information is confirmed, then it would appear appropriate that X remains in the primary care of the mother and/or the maternal grandparents.

    [60.]At this stage, there are very serious potential child safety concerns for X in the care of the father and it would appear to be of benefit for those concerns to be comprehensively investigated and assessed prior to the child spending any time with the father.

    FUTURE DIRECTIONS

    [61.]Given the high level identified risk issues it is suggested that specific orders are made for the father to spend no time with the child and to be restrained from coming into contact with the child until further investigation can occur by way of a Family Report.

    [62.]Noting the father’s strident denials of ever having perpetrated family violence, it would appear that accessing any programs designed to address past violent behaviour is likely to be of negligible benefit to him.

13. On 19 July 2019, interim orders were made by consent that the child live with the mother, that there be an order pursuant to section 68B of the Family Law Act 1975 (Cth) restraining contact between the father, the mother and the child, and that an expert be appointed.

14. In August 2019, the mother began a relationship with her current partner, Mr J, aged about 28. They intend to move in together permanently at some stage, probably this year.

    SINGLE EXPERT REPORT

15. In September 2019, the parties agreed to consult a single expert, a child and adolescent psychiatrist, Dr G, for the provision of a report.

16. On 10 December 2019, both parents, the subject child and the maternal step-grandfather, Mr Collier, were interviewed and observed by the single expert who had also reviewed all relevant court documents and documents produced in response to subpoena. In the report of the single expert released on 21 February 2020, there were a raft of recommendations:[2]

    [2] Single Expert Report of Dr G dated 21/02/2020, lines 1478-1584 being Recommendations 1-11.

    [1.]I recommend that X remain in the care of the maternal grandparents with regular contact with Ms Fray as is occurring presently.

    [2.]Mother should stay at grandparents to support her parents and demonstrate also she can care for herself properly. Ms Fray would have also had an opportunity to stabilise and perhaps be able to demonstrate some personal growth.

    [3.]I recommend that neither parent use any drugs or alcohol or illicit substances.

    [4.]At this time, I recommend no contact except perhaps sending cards and presents. I suggest that perhaps at the age of 8 years the introduction of some recognition contact may be possible with the father be allowed perhaps 2 of (sic) 4 times a year in a supervised capacity for perhaps an hour where X would need to be accompanied by a trusted adult such as Mr Collier or Ms B Fray. Mr Witton could have been able to demonstrate that his mental health is stable and he is drug free.

    The father would need to demonstrate:

    •Cooperation for drug testing to show he is drug free as well as

    •his compliance with treatment from his treating team, I recommend that the father continue with his treatment through his mental health service.

    •He needs to continue seeing his psychologist, his case manager and also his therapist through K Services.

    •being stable for a number of years in his mental health and life circumstances.

    •In addition, I believe that he should be under the care of a psychiatrist who should monitor and maintain close observance of his medication.

    During the next five years he could send card (sic) and presents. At the age of 8 which is a time when children are capable of more logical in thought and can communicate clearly it may perhaps assist X to have recognition contact to assist X to internalise a positive view of the father. I would recommend that some recognition contact with the father be allowed perhaps 2-4 times a year in a supervised capacity for perhaps an hour commencing at the age of 8 where X would need to be accompanied by a trusted adult such as Mr Collier or Ms B Fray. The reason for nominated the age of 8 as she will have had a significant period of stability with her maternal grandparents. Mr Witton could have been able to demonstrate that his mental health is stable, his is compliant with treatment and he is drug free.

    [5.]I recommend that neither parent use any physical punishment nor denigrate the other parent in front of the child.

    [6.]I recommend that the mother continue with her psychological supports and treatment.

    •I believe that she would benefit from some ongoing individual supportive therapy with a counsellor.

    •In terms of being able to develop and progress with regard to emotional regulation, Ms Fray would benefit from doing further courses and DBT dialectal behaviour therapy or ACT acceptance and commitment therapy.

    •The third form of therapy the mother may consider is more intensive psychological therapy such as interpersonal therapy. However, I am not certain that she has the cognitive and psychological mindedness to be able to deal with such therapy. Nevertheless, such therapy would involve more of a schema therapy over a two year period to deal with her feelings of inadequacy that have struck her. Schema therapy is a form of therapy where a clinical psychologist addresses the difficulties of various schemas that individuals have in terms of undermining their ability to cope.

    [7.]I recommend that both parents undertaking parenting after separation courses.

    [8.]I recommend that the mother undertake various parenting courses that are appropriate such as 123 Magic and Triple P parenting course.

    [9.]In terms of parental responsibility, I don’t have a clear view as the court would be in the best position to form a view of this issue as it may relate to where the child is residing and the primary carers. At this point I find it difficult to see that Mr Witton could have a significant role in terms of parental responsibility.

    [10.]The next issue to consider is whether there may be a time in the future where Ms Fray might be able to take over the primary care of X. In order for Ms Fray to take over the care of X she would need to demonstrate that she’s emotionally resilient and stable. She’s been able to maintain her residence in a stable way. She needs to be able to demonstrate she can support herself, and that she has grown significantly emotionally in order to cope with significant adversity without becoming psychologically and emotionally unwell. This is likely to take several years. The other consideration is if Ms Fray forms other relationships and has other children that this is going to impact significantly on her ability to maintain relationships with her two current children. Therefore in order for Ms Fray to be able to take over the full parenting responsibilities I believe that the would need to be engaged for over a year in a process of capacity building and skill building through intensive treatments and parenting programs, supervise by Family and Community Services.

    [11.]Should Mr Witton want to have more time with X he would also need to demonstrate significant stability as outlined above. Ultimately for Mr Witton to have more involvement with X he would need to have demonstrated some repair of his relationship with Ms Fray and Ms Fray’s parents such that there could possibly be the ability to have a workable business-like relationship where he could successfully engage with some sort of medication which might then allow some extension to his time with X. Whether Mr Witton Senior and Ms H could provide some support for Mr Witton and be able to have some additional limited contact, I haven’t been able to determine as Mr Witton and Ms H have not been assessed.

17. In particular, in recommendation number 4, the single expert recommended that there be no contact between the subject child and the father, except for sending cards and presents, perhaps commencing for her at the age of eight so as to introduce some recognition contact for the child. The single expert went on to say that for that to happen, the father would need to demonstrate a number of things: cooperation with drug testing; compliance with treatment from his treating team; continuation with his psychologist, his case manager and therapist through K Services; being stable for a number of years in his mental health and life circumstances; and that he be under the care of a psychiatrist who should monitor and maintain close observance of his medication.

18. After the report was released, the parties considered mediation, but the matter did not resolve.

19. In April 2020, the maternal grandparents became joined as parties to the proceedings.

20. Later that year, the mother was granted a new rental property through community housing. Since then the subject child has been having sleepovers two nights per week usually, with the mother. The child attends day care five days per week. Most recently, she has been diagnosed as being on the autism spectrum.

    TRIAL

1. The application now being dealt with for interim orders has arisen in the context of an adjourned trial.

2. On 24 November 2020, this matter was listed for trial for four days commencing 31 May 2021. The maternal grandparents vacillated about involvement as parties. They had been joined to the proceedings in April 2020 and had filed a Response by June of that year. On 23 March 2021, the maternal grandparents filed a Notice of Discontinuance and were, as a result, removed as parties.

3. The matter was thereafter relisted on the initiative of the Independent Children’s Lawyer (“ICL”). The Court asked the ICL to inquire with the maternal grandparents whether they intended to be witnesses in their daughter’s case. The trial dates were otherwise confirmed.

4. The maternal grandparents then sought to be re-joined as parties and for the trial to be adjourned. Both those applications were ultimately granted. Understandably, the father was disappointed that the matter could not proceed, although to his credit he accepted that the adjournment should be granted, especially as at that time the mother was resting in hospital while the matter was being decided.

5. All parties, with the exception of the mother, were directed by this Court to attend in person on what would have been the second day of the trial to discuss any possible resolution of the proceedings.

6. The parties came to an agreement, pending further order, in some respects, although there was no agreement about face to face time for the father commencing. A Minute of Order on behalf of the mother was handed up, and that position was supported by the maternal grandparents. It became Exhibit 1. A Minute of Order was also handed up on behalf of the father and was supported by the ICL. It became Exhibit 2.

7. The only really contentious issue was about time between the child and the father. The clear recommendation of the single expert was that if there was to be contact between the child and the father, it should not start before age eight, that it should be between two and four occasions per year, and in the presence of a trusted adult. I note with some concern that the father in his affidavit referred to it as having been unfair when the maternal step-grandfather was present when he was observed with the child. This was the presence of a trusted adult, as Dr G was recommending.

8. Age eight was clearly not an arbitrary nomination. In his report, Dr G refers to it this way:[3]

   At the age of eight, the age of eight is a time when children are capable of more logic in thought and can communicate clearly. Also, specifically at age eight, this child would have a significant period of stability with her maternal grandparents.

   [3] Single Expert Report of Dr G dated 21/02/20, par 37.

9. The child is now not quite four years old.

10. There are also additional factors to take into account, first of all arising for the mother. The mother has a new partner who has apparently an affectionate role in the life of the child. He may become known to the child as a stepfather. The child will have a new sibling, and no matter how welcome that baby is, there may be competition for the mother’s time as a result. The child has recently been diagnosed on the autism spectrum and is due to start therapy in that regard.

11. Then, factors arising for the father. The father was referred to a psychiatrist by his general practitioner but he refers to everything having fallen through on account of COVID.[4]  He is hopeful of connecting with a psychiatrist in C City when he moves there to live. The father has also experienced the death of two close family members, which has been distressing for him. The father also acknowledges that he has struggled with abstaining from marijuana, and it was very properly conceded during the course of the interim hearing that that has a particular significance for the father’s mental health.

    [4][4] Affidavit of the father filed 9/04/2021, par 15.

    CONCLUSION

12. In my view, the single expert will be needed to consider all those new circumstances and how they globally affect his further recommendations, if any. There is not sufficient evidence before me to justify the introduction of the child to the father face to face at age four. Such an order could do harm and destabilise the child at a time when her life is changing in several ways, as outlined above. For those reasons, I have made orders varying the order for residence, pending further order, to the maternal grandparents, introducing the recommendation of the single expert for the provision of cards and gifts from the father to the child, but not ordering face to face supervised time in a contact centre, or at all.

13. The proposal on behalf of the father that the maternal grandparents should supervise time between the child and the mother has not been made. Supervision is unnecessary and impractical in these circumstances, implying as it does, constant presence. The role of the maternal grandparents is one of care and supervision of the child generally, and she lives with them.

14. The father supported an order affecting himself where he agreed to supply information about expert therapeutic assistance. I have included the proposed order, as a notation to the orders, as an indication that the father is willing to consult those people and to provide evidence for it.

15. There will be a great benefit to the child, and ultimately to the possibility of at least recognition contact, if that work is undertaken by the father.

16. I have also come to the conclusion that the direction for preparation of an updating Single Expert Report should not be made until the mother has given birth, and the health and circumstances of the mother and baby is known.

17. The matter is accordingly listed for further directions on 27 October 2021 at 9.30 am. I anticipate an application for an updating Single Expert Report on that date, but the order is not made as yet.

18. Orders are made accordingly.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary.

Associate: 

Dated:       2 June 2021