GABBARD & GABBARD
[2018] FCCA 2584
•14 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GABBARD & GABBARD | [2018] FCCA 2584 |
| Catchwords: FAMILY LAW – Children – child with severe mental health issues – mother with severe mental health issues – father untested as resident parent – change of residence to father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65D |
| Applicant: | MR GABBARD |
| Respondent: | MS GABBARD |
| File Number: | BRC 4332 of 2014 |
| Judgment of: | Judge Cassidy |
| Hearing dates: | 28 to 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 14 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Bertone |
| Solicitors for the Independent Children's Lawyer: | Stewart Family Law |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That all previous Orders in respect of the child [X] born 2005 (“the child”), be discharged.
That the father shall have sole parental responsibility for the child.
That with respect to any long term decision, before the father makes a decision he is to:
(a)Notify the mother, in writing, of his intended decision;
(b)Allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;
(c)Consider the mother’s opinion before making his final decision; and
(d)Then advise the mother of his final decision.
That the child live with the father commencing on Saturday 15 September 2018, with the changeover to occur at the mother’s residence.
That upon the child commencing to live with the father, for a period of fourteen (14) days the child shall have no contact with the mother save for telephone contact each Wednesday and Saturday between 5:00pm – 5:30pm.
That upon the expiration of the fourteen (14) day period, the child shall spend time with and communicate with the mother as agreed and failing agreement:
(a)Each alternate weekend from Friday 5.00pm until Sunday 5.00pm; and
(b)Via telephone each Wednesday and Saturday between 5.00pm – 5.30pm.
School holidays
That during the school holidays in September/October 2018 and December 2018/January 2019, the child shall spend time and communicate with the mother in accordance with Order 6 hereof.
Commencing in the Easter school holidays in 2019, and in each school holiday period thereafter, the child shall spend time with the mother:
(a)For one (1) week in each of the Easter, June/July, and September/October holidays commencing from 5.00pm on the last day of term until 5.00pm the following Friday;
(b)During the December/January school holidays, the child will spend time with each parent on a week-about basis, with the mother for the first week commencing from Friday 5.00pm until 5.00pm the following Friday, and then week-about with each parent with the child returning to the care of the father by 5.00pm on the Friday immediately preceding the commencement of the school term.
Christmas period
That in all even numbered years the child will spend time with the parents as agreed, and failing agreement:
(a)With the father from 12 noon Christmas Eve until 12 noon Christmas Day; and
(b)With the mother from 12 noon Christmas Day until 12 noon Boxing Day.
That in all odd numbered years, the child will spend time with the parents as agreed, and failing agreement:
(a)With the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
(b)With the father from 12 noon Christmas Day until 12 noon Boxing Day.
Mother’s Day and Father’s Day
That the child spend time with the father on Father’s Day from 5.00pm the Saturday immediately before Father’s Day until 5.00pm Sunday.
That the child spend time with the mother on Mother’s Day from 5.00pm the Saturday immediately before Mother’s Day until 5.00 Sunday.
Birthdays
That the child spend time with the parent he is not already living with or spending time with on the child’s birthday as follows:
(a)If a school day, from after school until 6.00pm; and
(b)If a non-school day, from 1.00pm until 5.00pm.
That the child spend time with the parent he is not already living with or spending time with on the parent’s birthday as follows:
(a)If a school day, from after school until 7.30pm; and
(b)If a non-school day, from 10.00am until 5.00pm.
That the time the child spends with the mother shall be suspended to the extent necessary to enable the child to spend time with either parent for the special days and Christmas period set out in these Orders.
Specific Issues and Restraints
That the mother and father shall enrol in and complete at the first available opportunity the following courses:
(a)Triple P;
(b)Post-separation Parenting Orders Program (POP); and
(c)Circle of Security Parenting Program.
That the child shall continue to attend upon Dr S and the father pay any monies owing as soon as possible. In the event Dr S becomes unavailable to continue to treat the child, the father shall attend upon his General Practitioner to obtain a referral together with a mental health plan to an appropriately qualified child psychiatrist (hereinafter referred to as the “child’s treating psychiatrist”).
That each party shall:
(a)Comply with any recommendations made by the child’s treating psychiatrist in regards to therapeutic interventions that the child may require from time to time;
(b)Administer any medications to the child as prescribed by the child’s treating psychiatrist; and
(c)Follow the recommendations of the child’s treating psychiatrist to transition the child to mainstream schooling.
That the mother and father shall:
(a)Not physically discipline the child or allow any other person to physically discipline the child;
(b)Not denigrate the other parent to the child, or to any other person in the presence or hearing of the child;
(c)Use their best endeavours to ensure no third party denigrates the other parent to the child;
(d)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(e)Speak respectfully about the other parent to the child; and
(f)Not discuss with the child these proceedings, or the contents of any documents filed in these proceedings.
Exchange of information
That the mother and father will keep the other informed of their residential address and contact telephone number and shall advise the other parent within twenty-four (24) hours of any change to those contact details.
That each party will advise the other of any emergency or serious accident or injury involving the child as soon as practicable.
That the mother and the father are authorised to obtain information from the child’s school about the child’s progress, school reports, activities, photographs at the expense of the requesting party.
That the mother and the father are each at liberty to attend any school or significant extra-curricular event in which the child is involved, irrespective of in whose care the child is at that time.
Next return dates
That this matter be adjourned for mention only at 9:15am on 17 September 2018 in the Federal Circuit Court of Australia at Bundaberg.
That all parties are at liberty to appear by telephone via message stick for the mention on 17 September 2018. Each party shall dial into the Court promptly at 9:15am using the following contact number and participant code:
(a)Contact number: 1800 087 367; and then
(b)Enter participant code: 860 863 1187#
That the matter be adjourned for mention only on a date and time to be advised in September 2019 at the Federal Circuit Court of Australia at Brisbane.
That the Independent Children’s Lawyer be at liberty to relist the matter.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Gabbard & Gabbard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4332 of 2014
| MR GABBARD |
Applicant
And
| MS GABBARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting application filed by the father of a young boy, [X] who is thirteen years old (“the child” or “[X]”). The child said to Ms M in the Child Inclusive Conference that:
“He wants the Judge to know that he would love to feel happy but he has ‘no idea what I need’ to do in order to feel that way…”
The child is a very sad boy, with a significant number of mental health problems who is in urgent need of assistance and support to return him to good health. His mental health problems are:
“1. Oppositional Defiant Disorder
2. Adjustment Disorder with disturbance of mood (depression and anxiety)
3. Mental Health Disorders in Primary Carer
4. School Refusal
5. Obesity”
The father’s proposal
The father set out his proposal in the outline of case filed with leave on 28 August 2018. In that document the father’s proposal is:
“B. Final orders sought by the Father
1. That the Father shall have sole responsibility for making decisions about the [X]’s (sic) day to day care, welfare and development during time the child lives with the Father;
2. That [X] lives with the Father
3. That [X] spends times with the Mother each alternate week from after school Friday to before school Monday;
4. That the Mother will not interfere the time (sic) [X] spends with the Father”
The mother’s proposal
In the ‘Case information’ document filed by the mother on 21 August 2018, she seeks orders that the mother have sole parental responsibility and that the child live with her. The time the mother proposes the child spend with the father is:
“3. That the child spend time with the father as may be agreed, but failing agreement, on Tuesday and Thursday from 5-8:30pm and every second Saturday from 10-7pm.”
The mother also has orders for telephone contact and special days. There are specific issues orders in relation to discipline of the child and not smoking in the presence of the child. The mother’s orders provide for an exchange of information.
The mother has applied for an injunction restraining the father from:
“26. Entering, remaining upon or approaching within 100 meters of the home situated at and known as the mother’s address.”
The mother also seemed to be seeking an order that the father not lodge further applications without the leave of the Court.
The Independent Children’s Lawyer’s proposal
The Independent Children’s Lawyer is seeking an interim order that provides for all of the previous orders to be discharged. It provides for the child to live with the father and for the father to have sole parental responsibility.
The Independent Children’s Lawyer is proposing no physical contact for fourteen (14) days, with the child and the mother to have telephone contact each Wednesday and Saturday between 5:00pm and 5:30pm. After the fourteen days have elapsed, the child is to spend time with the mother each alternate weekend from 5:00pm Friday until 5:00pm Sunday, with the same telephone contact to continue.
The Independent Children’s Lawyer is proposing school holidays should commence from Easter 2019 with the child to spend half of the holidays with the mother. The Independent Children’s Lawyer also provides for special days. There are specific issues provisions in relation to the parents doing some courses and the child continuing to attend his treating psychiatrist.
Background
The father, Mr Gabbard, is forty-nine years old. He was born on 1969 (“the father”). The mother, Ms Gabbard is forty-seven years old and soon to turn forty-eight. She was born on 1970 (“the mother”).
The parties began living together in 1996 and married in 1999. They have two adult children who currently live with the mother. The eldest child is Ms B, who is twenty-one years old. Ms B will be twenty-two on 2018. The other child is Ms K, born 1999. Ms K is eighteen years old.
In 2012, the parties separated. The mother’s evidence in her affidavit is that she was hospitalised at Suburb A Hospital for six weeks and on her return to the family home, she alleges the father waited until the mother was asleep, and then raped her. The mother swears this event caused a re-admission to hospital and the mother did not return home from the hospital but went to a refuge instead. This would put the separation date at November 2012.
The clinical notes of the Suburb A Hospital, with an admission date of 14 November 2012, were marked as Exhibit 4 in these proceedings. The notes record:
“14.11.12
…E. [Which I take to refer to the mother], lives in owner occupied house w her husband of 17yrs, 2x Dtr’s 13 & 16 & 1x son 7. E. & husband separated in September. E. currently completing “separated under one roof” paperwork & has applied for FTF…”
The father’s case outline has the separation date at 1 October 2012. While not a lot turns on the date of separation, the events the mother alleges occurred around separation are relevant and will be discussed later in the judgment.
At around the time of separation the mother had a number of admissions to hospital in relation to her mental health. The parents concede that between 2012 and 2016, the child was in an equal time arrangement week about. On 3 June 2016 consent Orders were made that provided for:
i) Equal shared parental responsibility;
ii) Child live with the mother;
iii) Child time with the father each alternate weekend from Friday to Tuesday, time on special days and telephone calls each Tuesday and Thursday.
The mother reported a suicide attempt in December of 2016. From early 2017 the child was living with his mother and spending minimal time with his father. The child failed to attend school regularly in 2017 and by 2018 the child was not attending school at all. The child was asked to leave School 1 due to poor attendance in early 2018. The father then on 6 March 2018, filed these proceedings seeking an order that the child live with him.
Parenting arrangements
The parenting arrangements during the relationship for [X] were not described in any detail given that the child was only seven years old when the parents separated.
Post-separation, the parenting was shared until 2016. There was a Child Inclusive Conference in March of 2016, that is described by the family report writer at paragraph 11 of the report released by this Court on 2 August 2018:
“11. On 8 February 2016, the court ordered a Child Inclusive Conference (CIC), which was completed on 4 March 2016. According to the CIC, the parents agreed that the elder child Ms K live with the mother and spend time with the father at her discretion. Further, the CIC reported that [X] expressed a desire to live with the mother primarily, and that the child’s reasons for this appeared to be influenced by the differences in parental styles and the child was considered at that time to lack the maturity to make an informed and reasonable decision about his best interests.”
The Orders made on 3 June 2016 were not the same arrangements for [X]’s time with the father that occurred in 2017. At that point the time had reduced to day time about once per month until this Court made Orders on 1 June 2018 that provided that:
i) The child live with the Mother;
ii) The child spend time with the Father each Tuesday and Thursday from 5:00pm until 7:30pm and each alternating Saturday from 10:00am until 8:00pm commencing Saturday 2 June 2018;
iii) Changeovers to occur at the mother’s residence…
Education
[X] has been enrolled and attending School 1 since 2015. In 2017 his school report indicated that in all subjects there was insufficient attendance to grade [X]. In 2018, the father was asked to withdraw [X] from School 1. That request occurred in March as the child was not attending school. The child was enrolled in the School 2 High School in April 2018. He has only attended two days at that school this year.
The mother has now enrolled the child in Distance Education. There are no subpoenaed documents to demonstrate the child’ progress with this form of schooling. The child’s treating psychiatrist Dr S advised against home schooling. He gave the following reasons for this:
“1. Social skills tend to deteriorate further when kids are removed from school.
2. Dysfunctional day/night routines tend to persist or worsen.
3. Anxiety and depression usually quickly set in, even if not present before.
4. In this case particularly, there is little chance of reasonable school work being sustainably done, because of the entrenched ODD mechanism that already exists between mother and son.
5. Equally importantly, if not more so:
[X] needs a more balanced exposure. Rather than being locked in with his mother, who has a personality disorder, and is struggling with major mental health issues, 24/7. Attendance at school will provide an alternative emotional experience, and interaction, and allows us to see [X] away from mother, and access his own mental health issues, separate from his mother’s issues.”
Health and special needs of the child
[X] saw a psychiatrist for some sessions between May and June of 2018. The child had four sessions with the psychiatrist and each parent had two sessions. There was a total of eight sessions with the doctor. [X] was then withdrawn from therapy by his mother. On 27 June 2018 the mother attended instead of the child and indicated [X] had refused to come.
The psychiatrist has diagnosed the child with:
“1. Oppositional Defiant Disorder
2. Adjustment Disorder with disturbance of mood (depression and anxiety)
3. Mental Health Disorders in Primary Carer
4. School Refusal
5. Obesity”
The doctor’s opinion was that the child responded well to anti-depressant Fluoxetine. He notes that the child’s mood improved and the child was much more cheerful and his anxiety was reduced. The child was described as much happier and energetic.
The doctor described on examination:
“At examination, I found [X] to be depressed and anxious, worried about his mum, and about the prospect of being made to live with his dad, as dad will make him go to school. He does not want his current routine to change. He had an enmeshed relationship with his mum and there was separation anxiety as well as Oppositional defiance between mum and son. The separation anxiety appears to go both ways, as Mum cannot tender any clear reason why she does not want [X] to stay with his father. She seemed reluctant to even agree to the current limited contact that now exists between father and son. She may also not really be motivated for [X] to improve as she sabotaged a therapeutic effort by telling her son that the child psychiatrist’s opinion is just one of many opinions, and that he did not have to go to school just because the child psychiatrist has said so, that the home schooling option is equally as good. That was reported to me by [X] during his therapy session, and his mother confirmed it. So, no effort was made to go back to school. Instead they energetically pursued the home schooling option in spite of my advice against it.”
The psychiatrist’s recommendation was:
“1. Graduated return to school while staying with his father.
2. Continuation of His present Medication (sic)
3. Further assessment, hopefully is a (sic) different setting than currently exists”
I note that the family report records:
“77. Determining parenting arrangements in this matter is complex given the concerns for the child’s current well-being and lifestyle. Both parents seem genuinely concerned for the child’s school attendance and therefore appear to have the child’s best interests in mind in this regard. However, the child’s broader psychological health is considered the primary concern for this child. The underlying reasons for the child’s emotional state and school refusal are difficult to be certain about given the information available, but appear to be caused by a complex interaction of multiple factors including social anxiety, attachment issues, family dynamics and mood disturbance.
78. [X]’s relationship with his mother appears to be a very important source of security for this child. Further, the mother has demonstrated an outstanding capacity to prioritise these child’s (sic) needs in the face of significant personal and external stressors. Therefore when considering the best interests of the child, maintaining the mother-child relationship is strongly viewed as an essential factor in any recommendation with parenting arrangements. The child is emotionally immature and given his emotional concerns at the moment, remains vulnerable. A vulnerable, emotionally challenged child such as [X], requires an environment that provides safety and security whereby these emotional issues can be best addressed. From the information available the best probability of the child having these needs best met would be whilst living with the mother.”
The psychiatrist engaged by the Independent Children’s Lawyer, Dr F, records on page 21 of 30 of her report:
“51. Statistically, Ms Gabbard’s risk of suicide is increased compared to the general population, given her past history and diagnoses. However, her current risk of completed suicide is low. She is at risk of compulsive suicide attempts and self-harm should her stress increase, including should [X] be removed from her care. Ms Gabbard’s expressions of hopelessness and suicide thoughts are a stressor for [X] and a risk to his mental health. Children often feel responsible for the safety and welfare of a parent with mental illness, and may take on a caregiving role, but do not have the maturity or coping skills to be an effective support. NB Children may or may not be consciously aware and/or acknowledge taking on this role and responsibility…”
Dr F goes on to record at page 22 of 30:
“8. Ms Gabbard expressed strongly held, negative opinions regarding the children’s father. It is highly unlikely that [X] would not be exposed to those opinions (and this is supported by the collateral information from the IFS service). Ms Gabbard stated that the children have come to their opinions through their own observations of the father. She did not seem to appreciate how she may influence them or what they say to her (in that they may tell her what they see will be met with a positive reaction / approval from her and avoid opinions that might make her angry, upset or even suicidal) (sic). This poses a risk to [X]’s ability to form his own opinions regarding his father and to have a relationship with his father.”
…
“43. Parents with personality disorder can have difficulty separating their child’s needs and emotions from their own. They can be inconsistent in discipline and intrusive and insensitive in their parenting behaviours.
47. BPD is associated with unresolved childhood trauma in the parent and inter-generational insecure and disorganised attachment relationships. These issues are all associated with risk to parenting capacity and increased rates of adverse outcomes for children. Mother’s (sic) with BPD often misread their children’s cues and are not attuned to their children’s needs. They have been characterised as taking control when they don’t need to, but not when they do. They can have difficulty tolerating a child’s attempts at developing independence, perceiving this as a rejection. Children of mothers with BPD show a significantly higher prevalence of disorganised attachment than children of mothers without BPD…”
The concern for [X] raised by the psychiatrist on page 23 of 30 is:
“23. Ms Gabbard showed minimal to no insight into how her mental illness (and suicide attempts), labile mood, inconsistency, ambivalence around caring for [X] and negative comments about his father may impact on [X]’s oppositional behaviour, anxiety, emotional development and psychological functioning. It is reported that Ms Gabbard shares with children her thoughts of suicide. She appears to lack insight or to find it too difficult to acknowledge how this may be a driver to [X]’s separation anxiety. Ms Gabbard has not shown insight into the role her own difficulties, and failure to consistently implement strategies, have had in perpetuating [X]’s difficulties. In interview, she commented that she yelled, screamed and cried but [X] would still not do what she wanted, without apparent insight into the ineffectiveness of such strategies.”
On the basis of the expert evidence set out here, I have real reservations about the mother’s capacity to assist [X] to overcome the not insignificant mental health problems he faces.
Domestic violence
The mother alleges very serious domestic violence against the father, which the father denies.
The rape allegation
The mother’s case is that the father raped her the night she returned from her first admission to Suburb A Hospital. The mother’s case is this event caused her readmission to hospital.
The letter her psychiatrist wrote to Dr E on 7 November 2012, gives a different reason for the second admission. He said:
“Ms Gabbard has had a several week’s-long admission to Suburb A Hospital. She was transferred from the Suburb B Hospital after having become acutely suicidal following another gambling loss.
The history is of childhood neglect, physical and sexual abuse that becomes chronic depression, low self esteem and the repetition of degradation and poor decision making in relationships, parenting etc.
Ms Gabbard and [X] were very fortunate to escape a crippling (business) lease on a business that was losing money hand over fist.
Ms Gabbard settled into hospital. She enjoyed the Cognitive Behavioural Therapy Program. Unfortunately, she took an impulsive overdose shortly after discharge and was readmitted. This occurred because she was puzzlingly disappointed that Mr Gabbard continues his opportunistic philandering. He left young children unsupervised while she was in hospital.
For all this she is, despite her protestations, quite ambivalent about leaving the marriage. She has no family or reliable supports and she cannot manage money. And of course she gambles…”
The mother’s admission to Hospital for the overdose on 23 October 2012 was her second admission. The first was on 5 October 2012 where she cut her wrists. The clinical risk assessment of the mother’s second admission records:
“…
| VIOLENCE - including sexual violence | |
| Static factors Under 25 years of age ü History of violence/sexual offence Criminal history Conduct disorder History of substance abuse Male | Denies any Hx of violence/sexual violence |
| Dynamic factors ü Impulsivity Anger Intoxication/withdrawal Presence of cognition supporting violence Presence of psychotic symptoms Recent threats of aggression Recent acts of aggression Access to weapons / firearms Carries weapons / firearms Pre-occupation with violent fantasy At risk of sexually abusing others | è Reports “I have always been impulsive” “Recent overdose probably result of my impulsivity” |
…”
The progress notes from Suburb A Hospital from 14 November 2012 also record:
“Ms Gabbard. has recently been forced to close down her business– has incurred an $80,000 debt. Husband works f/t & they also own a (business) license. Ms Gabbard. advised SW of sexual, emotional, financial abuse from the husband. Ms Gabbard. stated … previously rung the crisis rape line for counselling. Ms Gabbard. currently has no access to any finances, is using the $ owed to creditors for groceries etc…”
Dr W’s notes on 22 November 2012 record:
“…
[X] has not been behaving himself
Dramatic first day home
Screwing me while I was asleep
Woke up with him in me
She fetl askamed (sic) and …after I’d been here and felt so safe and had doen (sic) the course… felt.... dont (sic) want to go back to feeling worthless and miserable
Couldn’t keep it inside , hd (sic) to tell somebody. Rang all the help lines in the CBT book
Rang the rape crisis line…”
Given the inconsistent evidence from the mother and the denials from the father, I am not able to make a finding in relation to this allegation.
The mother alleges that the father was financially controlling but given the significant gambling addiction the mother admits to, it is difficult to make a finding in relation to that allegation also.
There have been domestic violence orders put in place in this matter with mutual orders made by Magistrate Roney on 6 July 2016. The orders both had the standard conditions to be of good behaviour and not commit acts of domestic violence. Both orders also named the three children as protected persons. Both applications were private applications brought by the mother and the father.
There is an allegation made by the mother that the father was violent to their daughter. Police were called but took no action against the father because the daughter, Ms K, confirmed the father’s story of events. The Police noted on 6 February 2016 the following:
“Summary: Street checked. Police have been called due to a very minor non police related matter. It would appear Ms Gabbard is attempting to call police for any detail to assist her private dv app. Ms Gabbard called police, though could not articulate what the problem was. Stated her children had called her in hysterics and called police immediately. States she did not know the problem (however seemed to know many more details post police interviewing the related children). Child ‘[X]’ stated that he was in his father’s legal custody this evening ‘Adult Mr Gabbard’, when his father was dropping off his sister to their mother’s house (Ms Gabbard). [X] (child) attempted to exit the car. Mr Gabbard ‘father’ has reach (sic) over and grabbed the door to stop [X] ‘child’ from running off. There was no (sic) allegations of assault. This version was confirmed by Ms K who stated [X] doesn’t want to live with Dad. Police advised that it is not unlawful for a parent to be a parent and further warned Ms Gabbard not to continually phone police on trivial matters that are obviously nothing more than nuisance complaints. (In this case Ms Gabbard didn’t even know what she was complaining about). Police have concerns for the children in this dis-jointed relationship and feel their minds are being controlled/poisoned by Ms Gabbard who has previously been listed with mental health concerns. Nil action taken. Nuisance complaint. Sent from Mobile Device (QLiTE).”
I am not able to make any findings in relation to allegations of domestic violence that would in any way alter the decision I have arrived at in this matter.
The mother’s mental health
Dr F, an expert psychiatrist appointed by the Independent Children’s Lawyer, provided a very thorough and extensive report in relation to the mother. Dr F’s oral evidence also assisted me in this difficult matter. Dr F summarised the suicide attempts the mother has made at page 16 of 30, as follows:
“5. …
5/10/12 cut wrists, 23/10/12 overdose (noted on 30/10/12 that son saw her being taken into ambulance), 11/4/13 overdose and superficial lacerations to wrist (reported daughter rang neighbour who called ambulance), 20/4/13 superficial cutting in hospital precipitated by not getting job, 17/9/13 overdose precipitated by feeling angry and fed up with everything.
In-patient admissions:
·5/10/12 to 22/10/12 (discharged against advice) – chronic dysthymia, MDD, pathological gambling, stressors relationship with husband, financial.
·26/10/12 to 8/11/12 – transferred from Suburb B Hospital after suicide attempt. Precipitant gambling loss, background of childhood neglect and abuse, stressors financial and marital. Alleged husband financially controlling and promiscuous. Note that Ms Gabbard was not able to draw a link between her failed business and gambling issues and current marital issues. Medication Lexapro 40mg, diazepam 5mg prn.
·12/04/13 to 26/4/13 – admission precipitated by suicide attempt (overdose), talked of wanting to stay in hospital indefinitely when first admitted, accepted this was not possible or appropriate. Medication Lexapro 20mg, Seroquel 50mg nocte.
·27/8/13 to 3/9/13 – admission due to self-harm thoughts and suicide ideation.”
Dr F relied on the extensive Uniting Care Communities notes provided to her which she summaries at page 17 of 30, as follows:
“Uniting Care Communities
….
In April 2018, concerns were recorded that, despite support provided:
·The relationship between [X] and his mother was deteriorating.
·Ms Gabbard did not have sufficient capacity to parent [X] due to struggling with her own mental health issues and social isolation, that her mental state contributed to volatility and instability in the home and impeded her ability to parent effectively.
·Ms Gabbard had made statements about not caring, suicide ideation and parental worries in [X]’s presence.
·Ms Gabbard had made allegations that father a rapist and woman basher to [X].
·Ms Gabbard has at times given [X] messages that he might be better off with his father, and gave inconsistent messages about wanting / not wanting to care for him.
·When mother challenged on possible links between her behaviour and lack of change, would make excuses, and also make statements such as ‘I don’t care or question whether [X] would be better off out of her care.
·Ms Gabbard critical of services for not helping and accused them of blaming her.
·Over time of intervention, Ms Gabbard had been inconsistent in her parenting and capacity to assist [X], her parenting style described as ‘erratic and unstable’.
·Ms Gabbard was not engaging in treatment for her own mental health.
·Ms Gabbard’s parenting had not changed and she had not followed through consistently with any suggestions or support.
·Ms Gabbard might appear to engage with treatment and services, but not make changes or follow through on recommendations, described as ‘disguised compliance’.
·Ms Gabbard was giving [X] messages about his father that impacted [X]’s emotional wellbeing and capacity to build a relationship with his father.
·[X] was not engaging with support services or school and Ms Gabbard was not able to challenge or support [X] to engage.
·[X] was not able to form/express opinions, needs and preferences separately from his mother’s opinions, with Ms Gabbard stating to workers what [X] was feeling and wanting.
The mother appropriately sought to cross examine the author of the notes and the Independent Children’s Lawyer was able to get the author to give evidence by telephone. The mother cross examined the witness and she conceded that [X] was not in the room when they were having discussions but the door to his room was open and it was the witness’ opinion that the child could hear what was being said.
Having read the tendered Uniting Care Communities documents, I consider the summary provided by Dr F was accurate.
The psychiatrist’s opinion of the mother’s mental health problems is set out in her report on page 18 of 30:
“…It is my opinion that Ms Gabbard’s mental health problems are best diagnosed as: Depressive Disorder, currently in remission, Pathological Gambling and Borderline Personality Disorder. She also reported symptoms of long-standing low mood and general, pervasive anxiety that met criteria for Dysthymia and Generalised Anxiety Disorder respectively. However, these symptoms could also be understood as part of Borderline Personality Disorder. Ms Gabbard shows traits of other personality disorders including antisocial, dependent and avoidant traits. Ms Gabbard reported a diagnosis of Post-traumatic Stress Disorder but was not found to meet the criteria for the diagnosis. Her presentation is consistent with the adult sequelae of childhood trauma (abuse and neglect in attachment relationships) and it is well recognised that this type of trauma is not well captured by current diagnostic systems. A diagnosis of Complex PTSD is sometimes referred to but has not been formally accepted into the diagnostic systems…She described a past history of discreet episodes where her mood and functioning has declined and e.g. she has not been able to get out of bed. She reports having met the children’s’ care needs during these episodes e.g. getting them to school…”
Dr F’s conclusions are set out in her report on page 24 of 30:
“15. Conclusion
Ms Gabbard suffers with a complex combination of mental illness and personality disorder, arising from a likely genetic predisposition and severe childhood adversity and trauma. In her early adulthood she managed to escape her home and function well in the workplace but has deteriorated in the context of marital difficulties and parenting challenges. It is noted that domestic violence is alleged and that it is for the court to decide the veracity of these allegations. Ms Gabbard appears to have made some gains with therapy e.g. with a reduction in suicide attempts, but her overall functioning remains limited and the impact on her parenting capacity is significant. Ms Gabbard lacks insight into her parenting difficulties. This can be understood in the context of the ‘black and white’ thinking of BPD. It is hypothesised that Ms Gabbard holds firmly to the belief that she is a ‘good parent’ because if she is not she must be a ‘bad parent’ and this is intolerable for her to consider. Ms Gabbard is not able to hold the normal position of being ‘good enough’, with some areas of functioning well and others that could improve.
The collateral information indicates that Ms Gabbard is not able to draw links or accept that there is an impact of her mental illness on [X], she is described as becoming defensive when this is raised and critical of services for not helping. She presented as lacking in insight into how her mental illness, gambling and personality problems are likely to have impacted him. The impression gained was that she has difficulty separating [X]’s needs and her own. [X]’s psychiatrist has identified an entrenched pattern of oppositional defiance between [X] and his mother….
The prognosis for Ms Gabbard’s capacity to support [X] is poor.
Ms Gabbard presented as highly critical of the father, saw his application for time with [X] as a method to further ‘abuse’ her, and denied that he might want time with or to support his son. Her opinion of the father may have validity, depending on the assessment of the veracity of her allegations. However, it may also reflect the lowered threat perception, and tendency to perceive other’s intentions as ill intentioned that can occur in BPD (and on the background of childhood trauma). In any regard, her opinion of the father and anger at him prevents her from effective co-parenting including shared care and enlisting his support to help [X] e.g. attend school. The prognosis for the co-parenting relationship is poor.”
The family report writer has a different view of the mother’s mental illness. He sets out these opinions at paragraphs 84 and 85 of his report:
“84. The mother’s capacity to support [X] with his mental health and behavioural problems has been questioned by services that have been involved with the family. Further, issues with the dynamics of the mother’s relationship with the child have also been raised as problematic and that this has perpetuated [X]’s school refusal. If the mother was incapable of asserting boundaries and limitations for the child, and failing to encourage or facilitate the child’s engagement with school or professional support than this would be considered absolutely detrimental to the child’s wellbeing and best interests in many ways.
From the information available, and considering the factors aforementioned, in my opinion, the suggestion that the mother’s parental capacity is lacking in this regard has not been substantiated. When a child utilises defiance and avoidance as coping strategies it can be difficult for any parent to assist the child, regardless of their parental capacity. It appears that the mother’s desire and commitment to care for the child are extremely high and the problem is rather that the mother struggles to prioritise care for herself when her empathy and concern for the child are heightened. It is considered that the mother’s ability to cope can therefore be threatened by significant stress, in particular, when the source of the stress is [X]’s wellbeing. It appears likely that [X]’s distress triggers personal issues for the mother and therefore it is considered important that the mother engage in therapeutic support to improve her ability to meet the child’s needs without becoming overwhelmed herself. The mother’s capacity to meet the child’s needs more effectively, such as implement routines, maintain limits and boundaries, etc. will be enhanced if the mother can learn to manage her own emotions adequately.
85. Key factors to improve the child’s well-being in this matter include the mother engaging in therapeutic support for herself, including parental training to assist her in asserting boundaries and limitations for the child; the father spending consistent and regular time with the child, engaging in parental training, psychoeducation and therapy to assist him to understand [X]’s needs and how his expectations of [X] impact the child; and the child engaging in therapeutic support for his emotional issues and maladaptive coping strategies. Further, it would be strongly encouraged that family therapy between the father and child be considered as an effective intervention in an attempt to repair attachment insecurity in this relationship.”
I accept the evidence of Dr F because:
a)Her analysis of the mother’s psychiatric conditions was very thorough and she supported her conclusions using extensive collateral information from subpoenaed documents.
b)The family report writer, Dr C, a psychologist, does not source or summarise the collateral information that allows him to come to his evaluation. An example of this is:
“79… The information available suggests that the mother is very protective of the child and that this protection is appropriate and child-centered (sic).”
c)Dr F’s observations and conclusions are consistent with and not at odds with the opinion of the child’s treating psychiatrist Dr S.
Dr C read the opinions and reports provided by Dr F and Dr S but did not consider these changed his opinion, leaving me to determine the impact the mother’s mental health might have on [X] in the face of conflicting expert opinions.
Risks to the child
This child has not attended school in any real way since the beginning of 2017. I note the mother attempted suicide in December of 2016. Dr F is concerned that the mother’s suicidal ideation could have an impact on [X]. The Doctor said in cross examination:
“… I would expect her to be able to be helped with how to manage those and I note that she has also gone through a number of programs at Suburb A Hospital that will have helped with managing that long term suicidal thinking and feelings of hopelessness and sadness. So I wouldn’t expect them to resolve completely but I do think that therapy can be helpful in managing those. I do have a concern about the impacts of those thoughts and feelings on children. And I’ve said if children start to feel responsible for their parent’s safety that is a risk to the children’s development and that risk is present even if the actual risk of a completed suicide may be low. That the mother may have in place very good strategies for managing that, for knowing that it’s long term but for the children they may perceive that risk differently and be worried about their parent’s safety, what might happen in the future, have that anxiety and wanting to protect and look after their parent.”
Dr F under a heading ‘Impact on parenting’, gives a very extensive analysis of the impact the mother’s illness might have on her capacity to parent [X]. Dr F raises a concern about the mother’s capacity to assist [X] to progress with his own mental health problems, on page 23 of 30:
“34. Ms Gabbard has been blaming of others for the lack of progress that [X] had made. In interview she made no mention of the concerns identified by IFS service about her inconsistency, difficulty implementing consistent boundaries or ambivalence at times at keeping [X] in her care. She reported feeling let down by the IFS service. In notes, it is reported that she comments that services offer to help but do not help her or her family. These comments seem to be precipitated by Ms Gabbard feeling criticised or blamed, and/or perceptions of rejection and abandonment (e.g. School 1) feeling let down by others. It is noted that Ms Gabbard has questioned the psychiatrist’s assessment, (email in IFS records), where she said she thought that they needed to get ‘to the bottom’ of [X]’s avoidance and was not convinced that ‘the Psychiatrist Dr S is going to do that.’ This raises concerns that Ms Gabbard will undermine care and change [X] between specialists to avoid considering her role in the onset and maintenance of [X]’s problems.”
I accept that the child has been provided with extensive intervention from Headspace, The Children’s Hospital, the counsellor at School 1, the Uniting Care Communities home service that provided long term intensive input. However, there is no evidence to suggest that the mother has developed effective parenting strategies to manage [X]’s long standing oppositional behaviour.
I consider that there are risks to [X]’s long term wellbeing leaving him in the current environment with his mother. I accept the move to his father as recommended by the child’s treating psychiatrist, is not without risks. They include the child running away to return to his mother’s care. This risk will be compounded if the mother supports and condones this behaviour and I am not satisfied that the mother will be able to return the child to the father if [X] does succeed in running away.
A further risk is the child threatening and/or attempting suicide. This is a risk that the father is aware of. The father provided considered answers to the questions about how he would manage [X]’s behaviours. The child’s treating psychiatrist is also ready to resume treating the child and he gave evidence that he can provide the father with emergency contact numbers if the child is having serious difficulties with his mental health.
The father also gave evidence that he is prepared to take time off work if the child comes to reside with him to assist [X] with the transition to his care.
Legal principles
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order, s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests, I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are thirteen “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these reasons.
I must also consider (to summarise) the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Primary considerations
Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
I accept that there would be a benefit to [X] of having a meaningful relationship with both of his parents. Dr F raises a concern that the child’s relationship with his mother is enmeshed at page 15 of 30:
“17. … Ms Gabbard talks about the perceived failing of others to support and help [X] with his difficulties e.g. father and school. Ms Gabbard shows little to no recognition or acknowledgment that her mental illness and psychological problems might be a contributing factor.
Ms Gabbard’s description raises a concern that there is a degree of enmeshment with [X], i.e. not being able to separate her and his struggles and issues. For example (59) she states:
“[X] and I had, had an extremely stressful year, we both needed down time to recover and regroup for the new year.”
Dr F also raises concerns about the mother’s capacity to understand how her mental illness and in particular, her suicide attempts and ideation, might be impacting on [X]’s mental illness. The difficulty I see with the benefit to the child of having a meaningful relationship with his mother is the risk that she poses to his mental health. This risk would be compounded if the mother was not able to support [X] living with the father if that is what the court orders.
[X] reported to the family report writer:
“67. [X] smiled when talking about his mother and reported that he was “very happy” to be living there. [X] at this point volunteered to compare living between the parents saying, “with mum I’m more open and happy”…”just more comfortable when at mums.”, and later, “I’m close with Dad but not as close as with mum”.
68. [X] then led on to say that he wanted to continue living with his mother and “things to stay the same (i.e. spending time with father 3-4 days per fortnight or 1 day on the weekend)”. [X] reported that when with his father he enjoyed himself but stipulated that he did not want to spend any overnight time with the father. [X] explained this point by saying that “overnight I wouldn’t be comfortable at Dad’s”. [X] added that, “I used to be scared of him but not anymore because I’m bigger, taller and stronger”. [X] said that, “from as long as I can remember I’ve been scared of him (the father)”. [X] wouldn’t elaborate on this other than to say, “if I wasn’t bigger I probably would still be scared of him”.
69. [X] reported that his father was “more strict than mum”, but that he is not worried about the father making him go to school if he spent time with the father. [X] also said that the father’s preference for him attending mainstream school over home-school was not influencing how he feels about spending time with the father, saying “he hurt the relationship already.”
I consider that it is a benefit to the child to have a meaningful relationship with the father. The complication with the child’s relationship with the mother is that it may not ultimately benefit [X] unless the mother can ensure the relationship is on an appropriate child / parent basis.
Dr F raises real concerns that the mother may not be able to achieve this. I have discussed the risks [X] faces in either parent’s care at paragraphs 53 to 58 herein. I consider that [X] is at risk of emotional harm in the mother’s care for the reasons described by Dr F. I consider the child may run away and or threaten or attempt suicide if he is placed in the father’s care. The exercise for the court is assessing and balancing the relative risks.
Additional considerations
The child’s views
This consideration is set out in s.60CC(3)(a) as follows:
“(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;”
The child clearly wishes to remain living with his mother. However, even though he is thirteen years old and his wishes should carry considerable weight in the present case, the risk factors to the child identified in this judgment tend to marginalise the child’s wishes to a less relevant consideration.
The child’s relationship with significant persons
This consideration is set out in s.60CC(3)(b) as follows:
“(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);”
This is a matter where there have been identified risks to the child in the relationship with his mother and father. The exercise is to determine which relationship poses the least risk in the short to medium term.
The child clearly needs to return to school and begin a program of weight loss and exercise or he will remain in the very sad and unsatisfactory position he currently finds himself in. The mother has not been able to achieve these outcomes despite having the child living almost exclusively with her. Dr F points to difficulties in the mother / child relationship that are contributing to [X]’s mental health problems.
The father’s relationship with the child better represents an appropriate parent / child relationship.
The parenting and discharge of parenting responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
…
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
The mother has made a number of unilateral decisions in relation to [X]’s education and medical needs. The mother enrolled the child in distance education contrary to the advice of the child’s treating psychiatrist and without consultation with the father.
The mother ended the consultations with the child’s treating psychiatrist without consultation with the father and in circumstances where Dr S reports:
“He [[X]], was also more accessible for therapeutic engagement. But no sooner had we established the rapport, and enjoyed a session of individual therapy, was he withdrawn from therapy.”
This unilateral decision making has excluded the father from assisting in the care and treatment of the child.
There is no evidence of the parents failing to maintain the child. The father’s child support is taken out of his wages by his employer. The mother has a very serious gambling problem, evidenced by the subpoenaed documents from the (omitted) Club, but there is no suggestion she is not providing the child with the necessities.
The capacity of each of the parents is discussed above in this judgment. The concern I have if I leave the child in the mother’s care is that she will not be able to follow through with his medical treatment, ensure that he returns to school and takes part in a diet and exercise program. The mother has had extensive support and has not made any real progress on the evidence I have before me with the child’s medical and schooling issues.
I accept that the father is untested as a primary carer for this child and I would only order the child to live with the father if I was satisfied the mother is not able to assist the child to recover from his very troubling medical issues.
The father’s evidence was careful and considered when he responded to questions about how he would deal with [X]’s school refusal and other related issues such as his “addiction” to gaming. I also note the father has been offered support from the child’s treating psychiatrist.
The effect of any change in the child’s circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
“(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
I have no doubt that [X] is very settled in his mother’ care and any change in that arrangement would be very difficult for the child. The child could run away and I am not satisfied that the mother could support [X] to return to the father’s care. I accept there is also a risk that the child would threaten or actually self-harm.
The balance is whether the risks in the father’s household are worth taking to attempt a treatment for [X] that will see him recovering from his current problems.
Orders that are least likely to result in further litigation
I consider that whether the child lives with the mother or the father, this matter cannot be finalised with this judgment. The child’s special needs are so serious and in need of resolution in circumstances where the parents, to date, have not been able to resolve the child’s medical issues. The Independent Children’s Lawyer remaining in the matter and the court being available if further orders are necessary is the only available way to determine this matter. I intend to only make interim orders today.
Parental responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
In the present case I consider that the parent primarily caring for the child should have sole parental responsibility for [X] because:
i)The child’s schooling is an issue the parents cannot agree on how to manage.
ii)The child’s medical treatment is an issues and I consider it is preferable for consistency in treatment. This is better available if there is only one decision maker.
I therefore do not need to consider equal or substantial and significant time because I intend to order sole parental responsibility to the resident parent.
Conclusion
I am satisfied that the Independent Children’s Lawyer’s proposal is in the child’s best interests for the following reasons:
i)The order should not be final to allow the Independent Children’s Lawyer and the Court to continue to be available to make any orders necessary to support the child’s recovery.
ii)While the father is untested as a full time resident parent, the mother has not been able to assist [X] to resolve his medical issues. I make no criticism of the mother for this, but I do consider that it is important to assist [X] and to turn to the father to determine if he is better able to help the child.
iii)I consider there is a fine balance in keeping [X] away from the mother for a period to enable him to settle with the father and reassuring the child that the mother is safe and not at risk of harm.
I will therefore make the orders sought by the Independent Children’s Lawyer.
The changeover
The mother did not wish to bring the child to Court to assist in the changeover. I will therefore make the changeover on Saturday 15 September 2018 at the mother’s residence. This has been the changeover arrangement for the child spending time with the father since the orders were made in June of 2018.
I will also relist the matter for a mention on Monday 17 September 2018. The mention on Monday is to ensure that the changeover has occurred and to possibly issue a recovery order if the changeover has not occurred. This would not be an ideal outcome for this child given his anxiety and depression because it involves the Australian Federal Police removing the child from the mother’s care.
It is important that the parents work to make this transition to the father’s care as stress free as possible for the child.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 14 September 2018
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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