Gillespie and Gillespie

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLESPIE & GILLESPIE

[2013] FCCA 872

Catchwords:
FAMILY LAW – Parenting – interim orders – concerns as to mother’s mental health and possibility of relapse – consideration of further assessment prior to determining issues of equal time.

M & M (1988) FLC 91-979

Applicant:

MS GILLESPIE

Respondent:

MR GILLESPIE

File Number:

TVC 183 of 2013

Judgment of:

Judge Coker

Hearing date:

18 June 2013

Date of Last Submission:

18 June 2013

Delivered at:

Townsville

Delivered on:

18 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Fellows

Solicitors for the Applicant:

O’Shea and Dyer Solicitors

Counsel for the Respondent:

Ms Mayes

Solicitors for the Respondent:

Boulton, Clearly and Kern

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

That the Mother and Father have equal shared parental responsibility for the major long term issues of the children of the marriage, X born (omitted) 2007 and Y born (omitted) 2009, including but not limited to:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)The children’s name;
(e)Changes to the children’s living arrangements which make it more difficult for the children to spend time with each parent; and
(f)The children’s participating in extra-curricular sporting and cultural activities.
That in exercising parental responsibility on Order 1, the Mother and Father consult with each other about decisions to be made as follows:
(a)Inform the other parent about the decision to be made;
(b)Consult with each other by way of telephone, text message, email or letter on terms that they agree; and
(c)Make a genuine effort to come to a joint decision.
That without limiting the parental responsibility of either parent pursuant to these orders, each parent keep the other parent informed of, and properly consult with the other with respect to, any significant parenting issue affecting the children, such issues to include:
(a)Any medical or health matter concerning the children;
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)Matters relating to the children’s education;
(d)Disciplinary matters concerning the children.
That notwithstanding Orders 1-3, the Mother and Father be responsible for the day to day care, welfare and development of the children whilst the children are in their respective care.
That the children live with the Mother and the Father as follows:
(a)With the Mother, from after school or day care each alternate week from Thursday until the following Tuesday during the gazetted school term;
(b)With the Father, from after school or day care each alternate week from Tuesday until the Thursday, 9 days later, during the gazetted school term;
(c)During the gazetted school holiday periods, the parents share such holiday periods on a week-about basis:
(i)With the Mother, in the first half at the end of Terms 1, 2 and 3 in odd numbered years and the second half in even numbered years;
(ii)With the Father, in the first half at the end of Terms 1, 2 and 3 in even numbered years and the second half in odd numbered years;
(d)Unless otherwise agreed in writing between the parties, the parents share the Christmas school holiday period on a week- about basis.
That wherever possible, changeover for the children is to occur at the children’s day care or school or alternatively, at McDonald’s Family Restaurant (omitted).
Notwithstanding the above, the children spend time with the parent that they are not otherwise spending time with as follows:
(a)Provided that the parents are within 50kms of each other, on Christmas Day, for a period not less than six (6) hours at times agreed between the parents and failing agreement from 12.00pm until 6.00pm on Christmas Day;
(b)With the Father from 9.00am until 5.00pm on Father’s Day;
(c)With the Mother from 9.00am until 5.00pm on Mother’s :Day;
(d)On each of the children’s birthdays with both children for not less than five (5) hours on a non-school day or three (3) hours on a school day at times to be agreed between the parents and failing agreement from 12.00pm to 5.00pm (5 hours) or 3.00pm to 6.00pm (3) hours;
(e)On the Mother’s birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm; and
(f)On the Father’s birthday at times agreed between the parents and failing agreement from 3.00pm to 6.00pm.

Telephone Communication

That both parents be at liberty to contact the children when they are not in their respective care at all reasonable times but in particular each Tuesday, Thursday and Saturday evenings between 6.00pm and 7.00pm. In the event that the children are unavailable at these times, both parents will facilitate and encourage the children to return the telephone call within 24 hours.
Both parents facilitate the children communicating with the other parent by telephone at all reasonable times should the children express the wish to call the other parent.
All telephone communication between the children and the parent is to occur in privacy and without the use of speaker phone.

Education

That X continue to be enrolled and attend at the (omitted) Primary School.

Counselling

That the parties continue to allow the children to attend at counselling at the organisation known as “(omitted)” with both parents being permitted to speak and consult with the children’s treating psychologist with a view to being involved with their treatment.
That the Mother continue to receive ongoing psychological treatment and attend at the offices of her psychologist, Ms O.
That the Mother continue to attend at and receive treatment from any medical professional as may be recommended and/or required by Ms O or the Acute Mental Health Team of the (omitted) Hospital.
That leave be granted to Dr M to peruse the Court file and subpoenaed documents and provide an addendum report.
That each party be granted liberty to apply once the addendum report has been filed.
That today’s reasons be published and a copy provided to Dr M.
That the parties and their legal representatives attend a Conciliation Conference with the Registrar and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such conference to be held at 11.00am on 2 September 2013 at Townsville.
That the Applicant pay the Conciliation Conference fee no less than 14 days prior to the Conference.
That the parties exchange financial information to enable the Conference to proceed no less than 14 days prior to the Conference.
That the matter be adjourned for further mention at 10.00am on 16 September 2013.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TOWNSVILLE

TVC 183 of 2013

MS GILLESPIE

Applicant

And

MR GILLESPIE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

Introduction

The proceedings before me at the present time, relate to orders sought on both a final and interim basis, in relation to the parenting of two children, X, born (omitted) 2007, and therefore, shortly to turn 6 years of age, and Y, born (omitted) 2009, and therefore, approaching 4 years of age. The children are the children of Ms Gillespie, whom I shall refer to as the mother and Mr Gillespie, whom I shall refer to as the father.
The parties were in a relationship, which included a period of co-habitation of approximately 10 years, marrying in April of 2002, and finally separating in or about March of 2012. The parties’ relationship was, no doubt, like so many others, constituted of both good times and bad times. But in this particular matter, unfortunately from the perspective of both parents, I would think that the period leading up to final separation of the parties, was one that could only be described as, the most dreadful of times.
I lay no blame in relation to that particular statement in respect of this matter, as it was clear that it included a situation, where the mother, through issues of ill-health, including particularly, issues of mental health, was in a dreadful situation. She attempted, on a number of occasions, to take her own life and the consequences for her, but of course, also for the father and for the two children of the relationship, had been dreadful and subsequent to the institution of the proceedings, long-standing and financially debilitating.

The Proposals

The mother, on 1 March 2013, filed an initiating application, seeking orders in relation to the parenting of the children, which provided both on an interim and final basis, for the parents to have equal shared parental responsibility and the mother said, for the children to live equally with the father and the mother, on a week about basis, with changeovers, she suggested, to occur at 5 pm Sunday, with the children to spend holiday time with the father and the mother, as agreed.
It was also proposed by the mother that there should be telephone communication and there should be, obviously, flexibility to ensure that special occasions, were available for enjoyment by both parents.
The father filed a response on 28 March 2013. His final and interim orders were, perhaps, a little more detailed than the orders sought by the mother, but can be summarised as follows:
·   He agreed that there should be equal shared parental responsibility for major long-term decisions to be made in respect of the children.
·   That the parents have day to day responsibility when the children were in each parent’s care.
·   That the children live with the father and spend time with the mother for five days each fortnight, but initially, it was proposed in the response, that that should be for a period of three days, from after school on Wednesday, until 5 pm on Saturday, in week (1) and for two days, being from after school on Wednesday, until 3 pm on Friday, in week (2).
·   That this arrangement should continue for the whole of the year, but the father did acknowledge that there should be the opportunity for each parent, to take two one week blocks of time, each year with the children, during school holidays.
·   The father’s orders then went on to detail arrangements in respect of proposed changeovers and where that should occur, either at the children’s day-care or school, or during school holidays, it would seem, perhaps, most likely, at the McDonalds family restaurant at (omitted).
·   Additionally, the father sought specific notations in respect of special days and they were detailed in order 8, as well as, arrangements in relation to telephone communication, ie, the parents with the children and that both parents were to facilitate communication, in circumstances where the children requested the opportunity to speak with the other parent.
·   The father proposed that X should continue to be enrolled at the (omitted) State School, though the mother had initially proposed that the child should be enrolled at the (omitted) State School. That particular aspect of the matter, at least as I understand it on an interim basis, is not pressed by the mother and it is proposed that X should continue to attend the (omitted) State School.
·   The father also sought orders specifically with regard to counselling, to be attended by the children and the mother, as a result of the concerns that he says, continue in respect of the mother’s health and well-being, as well as significant effects, that he says give rise to concerns, in respect of the children, particularly the older child, X.
·   The father also sought a specific further assessment, in relation to the mother and his order 16, was in these terms:
That the mother be psychiatrically assessed by a qualified psychiatrist appointed jointly by the parties or by this honourable court, with :
(i)The parties to fully co-operate with the appointed psychiatrist.
(ii)The parties to share equally in the cost of the psychiatrist.
(iii)Leave being given to the appointed psychiatrist to inspect all court material filed on behalf of both parties, in addition to all of the subpoena material provided in this matter.
·   Finally, the father sought in order 17 that within 14 days of the date of these orders, the mother develop a safety plan, in relation to her mental health and provide the plan to the father.

The Evidence

Quite simply, these proceedings relate to the mother’s capacity to provide for, and to meet the needs of these two young children. As I said, the circumstances that befell this family generally, in February and March of 2012, have had dreadful consequences, not only for the mother and for the father, but most particularly, the children.
It has given rise to an obvious difficulty, that the parents now need to confront and unfortunately, from the perspective of the parents, it has required the intervention of legal representation and the courts.
Simply, the mother says, “I am well and the children should be able to spend equal time with me and the father.” The father says that, “On the face of it, the mother appears well,” but he still has lingering doubts or concerns as to the long-term prognosis, in relation to the mother and of course, most significantly, the concerns that he says, arise in the event of a relapse occurring.
To assist in relation to this matter, though unfortunately, it has not led to resolution, the parties have engaged a number of experts to provide evidence in relation to the proceedings. I shall come to their evidence in relation to this matter in a few moments, but perhaps, to more accurately summarise the position of the parties in relation to the matter, I should refer specifically, to the outlines that have been provided by the legal representatives for each of the parties.
Counsel for the mother at point 5 on page 7 of the outline says the following:
None of those persons raise a serious risk.
He is referring to the reports prepared by two psychiatrists, as well as reports or file notes, which have been provided from two psychologists. The notation goes on:
If 4 professional experts do not identify it, what is the basis for the Court to do so? Put another way why would further testing (in the manner sought in paragraph 16 of the Response) satisfy the father given that no careful professional could ever be expected to “guarantee” safety?
The position taken by the father is detailed in part, in paragraph (39) and in part in paragraph (40) on page 11, of the outline provided on his behalf. There, the legal representative say:
39.The father is naturally very protective of his children after the significant traumas he and they have experienced. He has strong support from his family, particularly his mother who was singled out by the report writer as having a strong bond with the children and providing much needed emotional support and scaffolding for them.
40.The father wishes a cautious path to be taken – one that ensures the mother does not overextend her own capacities and that the children are not exposed to further risk and instability.
The father’s position, when that outline was filed on 11 June 2013, was to continue the current five day plan, though, to provide it in a split over two weeks, as detailed in the response that was filed.
At the commencement of the hearing, however, it was noted by counsel for the father, that the father’s position was now simply to say, that there should be five days in each 14, spent with the mother, and of course, correspondingly, nine days in each 14, therefore, spent with him.
As I say, there have been a number of reports obtained and assessments provided in relation to this matter. They have not fully satisfied, either parent in relation to the position, in respect of the matter, though, it can perhaps be, most readily noted that the mother is more willing, understandably, to accept the position that has been detailed in respect of both the reports and the assessments provided.
I do not intend at length, to go through all of the reports in relation to this matter, but it is noteworthy, that a few points from various of the reports or assessments be commented upon. In the report that was provided by Dr M of the (omitted) Hospital and Health Services, Community and Mental Health Service, the doctor notes on page 3, the following:
Mr Gillespie said that, while he believed that Ms Gillespie was not the best mother and not the worst mother, what had hit him hard were the three suicidal attempts that Ms Gillespie had made before admission to hospital and wondered when the next mental breakdown with similar behaviours would be. He particularly pointed out that when Ms Gillespie had stopped taking Zoloft (antidepressant medication) on her own about a year following the birth of her second child, she started showing signs of relapse. However, Ms Gillespie said that she had not stopped taking Zoloft on her own, but at her GP’s advice, as it had been a year after she had given birth (which is the official definition for the risk of post natal depression). When she went back to Zoloft, she did not stop (sic) it until her GP changed it to Escitalopram (Antidepressant medication), which she reacted to with side effects and suicidal ideation. Ms Gillespie emphasised that she had learnt her lesson, never to stop taking Zoloft in the future.
Dr M goes on under the heading, “Current Mental State and Impact on the Care of her Children” to say:
Ms Gillespie was discharged form (sic) the Acute Mental Health Unit on the 10^th April 2012 well improved. I have continued seeing her as an Outpatient and the systems of depression have now completely disappeared. She has continued on prophylactic medications and has been having some counselling. She has now returned to her job as a (omitted) and has now the Care of her children two nights a week without any supervision or help from her mother.
Her own mother, who I interviewed separately, confirmed that Ms Gillespie is now back to her usual self and that there have been no concerns about her ability to care for her children. Her husband did not dispute the fact that she is now well, but was rather more concerned about future relapses.
And finally under the heading “Opinion”, Dr M says:
Ms Gillespie suffered from Post-Partum Depression and Anxiety four years ago. However, she recovered well and continued to function well as a mother. She went on to have a second child two years ago and again continued to function well as a mother. Recently, she developed anxiety and depression from which, in my opinion, she has now fully recovered.
Ms Gillespie has never suffered from a psychotic illness. What she has had is a mixture of anxiety and depression. These disorders while carrying suicidal risk are self-limiting and when properly treated recover completely and unlike most psychotic disorders, leave no functional deficits. In my view, Ms Gillespie has now fully recovered from these disorders and there are no functional deficits. However, she will need to remain on prophylactic medication and see her Doctors regularly as an Outpatient.
And, finally, it is said.
It is my opinion that on the basis of her full recovery, and given the usually good prognosis for these disorders, there are no clinical reasons why Ms Gillespie cannot have full Care of her children in conjunction with their father. On the contrary, depriving her of full maternal responsibilities for her children could, in my view, be a major stressor to her and an impediment to her good future emotional and psychological functioning.
Dr M, obviously, is of the view, on the information that is available to him, that the mother has made a full recovery and that she is fully and entirely capable of providing, as he says, in conjunction with the father, for the care of the children. The father is not so certain and, as I noted earlier, made comments obviously to Dr M in relation to his concerns with regard to the possibility of relapse and of concerns with regard to the possible effects upon the children.

It is for that reason, as I understand it, and a contention by the father that the mother has not made full disclosure as to her past psychiatric or mental health issues, that there should be a more comprehensive or complete report prepared in relation to this matter.
Additionally, the parties, by agreement, arranged for a report to be prepared by Ms S, a most experienced family consultant providing reports to this court and to the Family Court of Australia. Ms S’s report was comprehensive and, interestingly, raised a number of issues in respect of both of the parents but then made final recommendations with regard to arrangements in respect of parenting. In particular, Ms S noted at paragraph 39 onward a number of matters which it is important that I should relate. At paragraph 39 she says:
From her assessment results it seems that X has some anxiety around her relationship with both her parents. She repeatedly described her father in unusual terms, rather than describing him as happy, sad, etc. She described him as smiling because he has found his kids again. She was resolute in her description repeating it each time she was randomly tested. Likewise she described her mother positively but without reference to her own relationship or bond with her mother. X’s description of her mother was based around praise for her mother for doing a good job.
Ms S goes on at paragraphs 40 and 41 to say:
40.Without further evidence it is not possible to develop a robust hypothesis about X’s perceptions of her mother and father but her responses raise a question about the type of relationship X has with her mother and father.
41.Conversely X’s description of her paternal grandmother was in more developmentally expected terms. Most importantly she spoke about her grandmother in terms of her own relationship with her. This type of egocentric reference is much more usual and developmentally adaptive. She perceives her grandmother as nurturing and a person who helps her make sense of the world by telling her things. For example X stated it was her grandmother who told her about the family report interviews.
It is an interesting comment in relation to this matter, particularly when concerns are expressed by the father in relation to the mother’s capacities but the report, of course, gives rise to issues of concern with respect to the father, his relationship with the child, and as I will comment a little later in these reasons, certain interactions between the father and the child and the father, the mother and the child. Ms S goes on at paragraph 44 to say:
44.During the observation Ms Gillespie was attentive to the children’s physical needs, talked with the child and seemed confident in her practical parenting responsibilities. X’s behaviour oscillated across the observation with her mother. She was, as stated previously, very clingy when separated from her mother and at other times bordered on defiant. A couple of times during the observation she slammed her toys into a wall or banged things down in a defiant gesture. These actions went unnoticed by her mother suggesting this is a fairly normal behaviour for X or her mother was too distracted by the report process.
Further at paragraph 47 and 48 the following is said:
47.From the moment of their arrival Ms Gillespie was attentive to the children’s needs and clearly takes primary responsibility for the children (sic) needs whilst in her home. Ms Gillespie demonstrated she is attuned to the children, meaning she and the children read and respond to each others’ cues and are synchronous and interactive with each other. She repeatedly picked up the children’s emotional and non-verbal cues instantly and responded to them. The children seemed closely bonded to her and secure with her.
48.Mr Gillespie was keen to demonstrate he has a close bond with the children. For the observation he sat with them finishing off some art work that his mother and the children had been doing the last time they were with her. The children responded warmly to their father but there was no demonstration of attunement between them. Mr Gillespie also looked to his mother to act on most of the children’s needs during the observation.
At paragraph 53 the following is noted:
Her presentation during her interview –
and this is, of course, relating to the mother –
supports Dr U’s opinion that Ms Gillespie has fully recovered from an episode of depression and anxiety. Despite this there was one behavioural concern demonstrated by Ms Gillespie that warrants further evaluation. This concern relates to her lack of emotional expression throughout the assessment. Despite talking about some highly emotionally salient issues and experiences Ms Gillespie’s moods and expressions did not fluctuate or reflect her thoughts. Her manner may best be described as depersonalised. She spoke almost as if she was telling someone else’s story.
Ms S goes on at paragraph 56:
Mr Gillespie wants a parenting arrangement that provides a permanent solution to the risk of mental illness relapse in Ms Gillespie. Such a wish however is not realistic because it is not the best solution for the children. Ms Gillespie cannot be punished for her history of mental disorder. Likewise her children need age appropriate education and support to understand their mother’s psychological vulnerabilities as well as to adaptively process their own experiences of their mother’s illness.
At paragraph 58 it is said:
Her emotional relationship with her children (or parenting capacity) which refers to her ability to recognise and understand the inner discord her children are experiencing because of the turbulence and changes they have been through in the past year, however, does appear compromised. Her opinion about the children’s experience of her suicidal ideation and other events such as the separation and having had a long period without seeing her suggests she is either in denial about or not recognising the children’s cues about their experiences.
At paragraph 62, Ms S notes:
Mr Gillespie’s presentation and narratives were quite defensive and highly blame-laden. He denied responsibility for most of the significant events that have taken place both pre and post separation between himself and Ms Gillespie. This type of presentation is extremely common in family law disputes and adds weight to the premise that his parenting capacity may also be diminished as he struggles through the rollercoaster of separation and divorce.
Finally, at paragraph 72 which is included under the heading “Recommendation”, Ms S says:
That Mr and Ms Gillespie equally share X and Y’s care. As the children are used to spending large chunks of overnight time with their father it is recommended that the children live with each of their parents on a week about basis with changeovers occurring every Monday morning at the commencement of school.
She goes on, however, to say:
As a condition of a shared care arrangement it is recommended that Ms Gillespie seek specialist counselling and education about the impact of mental health problems on parenting behaviour, including parentification.
That very last comment is significant in relation to this matter, because there is an issue of what might be called parentification, in relation to this particular matter. To that end, the father has taken certain steps to deal with what he observes, he says, are concerns relating to the effect upon the children of the mother’s mental health issues and, in particular, has arranged for various consultations with Ms G, a clinical psychologist practising in Townsville. Three letters or reports, if they can be described that way, have been provided by Ms G in relation to the matter, the first dated 12 April 2013 and the second two dated 11 and 12 June 2013.
In the first report Ms G addresses what has so far occurred and notes that X had attended for three consultations on the 5 and 19 March and 11 April 2013. She notes that a further consultation was arranged for 30 April 2013 and noted, in relation to the therapeutic process, that it had, at least in April of 2013, not progressed terribly far. She says:
X has presented as a quietly-spoken girl, who has not separated with ease from her father for the therapeutic consultations. Her father has therefore been present for all three consultations thus far, and X’s sister Y has been present for two of X’s appointments.
To date, X has been reserved in disclosing information relating to herself and her family. This has served as a limitation in therapeutic assessment, and precludes any clinical opinions relating to her current emotional state. The focus of counselling to date has therefore been on building a trusting therapeutic relationship with X; the normalising of emotions, and emotional regulation strategies; and addressing generic matters relating to parental separation. Although reserved in the consultations thus far, X is engaging with the therapist more spontaneously as the counselling process progresses.
It is hoped that the counselling process will be of benefit to X, and provide her with the strategies and skills required to manage her current circumstances.
The father obviously, as a result of concerns that were expressed by him, commenced the attendances with Ms G, to deal therapeutically with the issues that he says he observed, in relation to the child. The first few interviews, however, were more of an introductory nature. However, the later reports do make reference to further issues in relation to X and her progress in the therapeutic process. Under the heading “Therapeutic Process”, in the second report of 11 June 2013, the following is said:
The initial focus of counselling was building a trusting therapeutic relationship with X; the normalising of emotions, and emotional regulation strategies; and addressing generic matters relating to parental separation.
As therapy has progressed, X has appeared more at ease in the counselling context, and has been able to articulate her concerns more spontaneously. X expressed concern for Ms Gillespie’s safety, referring to reported previous incidents of self-harm. It was agreed that this concern would be addressed together with Ms Gillespie in a consultation. As mentioned in a previous paragraph, Ms Gillespie attended the consultation on 11.06.2013 and X’s concern was addressed jointly with Ms Gillespie. Ms Gillespie indicated that X had mentioned her concern at home recently, and X and Ms Gillespie had also addressed the issue at that time. The counselling process encourages the acknowledgement of concerns, and addressing them in a constructive manner, and this situation was managed accordingly.
Ms G goes on:
On 11.06.2013 the Bene-Anthony Family Relations Test was administered. This instrument explores the emotional context of family relations as perceived by the child. Results of the test need to be considered and interpreted within the context of additional information. X’s scores on the test suggested that there are positive elements in her relationships with her father, mother and sister. While X acknowledged some negative elements in her relationship with her sister, she acknowledged minimal negativity in her relationships with her father and her mother. This may suggest some defensiveness with regard to these relationships. The results suggested greater emotional involvement with her father and sister, than with her mother. However, this tendency would need to be interpreted within the context of X spending more time with her father and sister, than with her mother.
The report goes on:
In a discussion on 1.06.2013, Mr Gillespie and Ms Gillespie indicated that X and her sister, Y, are not exposed to acrimony or conflict between them. They also stated that they are currently able to manage the logistics of parenting through functional but courteous communication.
Under the heading “Further Counselling”, Ms G opines as follows:
It is my clinical opinion that the following matters are relevant to the counselling process at present.
· X has expressed concern for Ms Gillespie’s safety, relating to potential self-harm. This has been addressed, and, depending on feedback at subsequent consultations, may no longer remain an area of concern.
· X may experience confusion in her relationships with Mr Gillespie and Ms Gillespie, in the adjustment from their joint parenting to that of individual parenting entities. X seems to make an effort not to appear disloyal to either of her parents, and may be careful not to displease either parent. It is suggested that X would benefit from support and guidance in facilitating a positive relationship with both parents.
It is therefore recommended that these issues are addressed in further counselling sessions, as well as any additional issues which may be raised.
And finally, Ms G says in the second report:
Although X has been engaging with the therapist to a greater degree as counselling progresses, she remains cautious in her disclosure at times. X’s caution is a limiting factor in making interpretations and drawing conclusions from the counselling process. It is therefore suggested that the focus of counselling remains to provide a supportive environment for X in attaining improved emotional wellbeing, and caution should be exercised in making any extrapolations regarding the process.
In the third report, a further letter a day after that of 11 June 2013, Ms G says:
The information which follows is an addendum to the report dated 11 June 2013, the second report on the counselling process to date of X.
It goes on:
Additional information relevant to X’s counselling process:
During the discussion with Mr Gillespie and Ms Gillespie in the consultation of 11.06.2013, it became evident that there may be alternate perspectives presented by Mr Gillespie and Ms Gillespie to X, in referring to reported incidents of self-harm by Ms Gillespie. It is my intention to suggest to Mr Gillespie and Ms Gillespie that these differing perspectives may result in confusion for X. It is suggested that it may be useful for Ms Gillespie and Mr Gillespie to agree on consistency in the discussions of these incidents with X.
And finally:
It should be recognised that X’s counselling process is therapeutic in nature, and not one of formal assessment. Caution should be exercised in making interpretations or drawing conclusions relating to the process.
I make reference to that final statement because it’s noteworthy that Ms G makes similar statements in relation to each of the reports that were proposed by her. Quite simply, therefore, but it is not simple, the difference and difficulties in relation to this matter relate to issues of interpretation by each of the parties as to the mother’s health and more particularly, I would think, to issues in relation to the effects of past events, particularly upon the child X. The mother says that she is well. The mother says that there should be a return, at the very least, to equal care because that would be appropriate for the children.
I note, however, that Dr M also made reference to the fact that it would be of benefit to the mother, in that it would provide at least a framework for the mother to see herself as fully involved in the care and supervision of the children and, if she were to perceive that she were not as fully involved in the care and supervision of the children, as would be involved in equal care, then it may in fact be an additional stressor, in relation to her life.
It’s noteworthy also, that Ms S recommends, finally, that there should also be that equal involvement in the care of the children. Though, at the same time that she makes that final recommendation, she also touches upon, at length, many issues of concern, particularly with regard to depersonalization in respect of some of the behaviours or actions of the mother and, of course, also makes reference to the possibility of parentification, the reversal of roles of the mother and the child X in their dealing with each other.
The father’s observations in that regard therefore, at least to some extent, extend, it would seem, in accord with the concerns that have been noted by Ms S because, in addressing the issues with Ms G, it is clear that Ms G notes that the child is expressing concern in relation to the mother’s safety, referring to reported incidents of self harm and also referring to the child’s concern for the mother and the need to provide for or protect the mother.

Discussion

This matter is without doubt enormously complex and enormously difficult. There is, I would think, an element of minimisation on the part of the mother in relation to the progress that she has made. Clearly, for a period of the last 14 months or more, she has progressed from a very serious mental health situation, in which she attempted to take her life on three occasions, to a situation now where she is of the view, as is her doctor, that she is able to fully resume the responsibilities associated with the parenting of the children.
There is, however, a concern and it is touched upon, certainly by Ms S and also, peripherally, by Ms G, in relation to the fact that she does minimise the previous effects upon the children of her suicide attempts. One could not imagine the horrifying circumstances for two little girls, of seeing their mother, one of the two most important people in their lives, covered in blood in a bathroom, in a state of extreme distress.
Additionally, there was a real element of concern that the mother acted in a manner in which, on another suicide attempt, within a short time after one of the previous attempts, she took an overdose of medication and there was at least a prospect or possibility of her not awaking from the effects of the drugs. At that time it appears acknowledged that she knew that the father was not present and that the children were present and the consequences of that are hard to imagine, particularly upon two children of such tender years.
There does not appear, at least on the evidence so far, to have been any long-term effect upon the younger of the two children, Y, but there is, it would appear, clearly, some residual effects upon X, leading to the parentification to which I have made reference. That, of course, is an issue, particularly, as I say, in circumstances where the mother appears to be minimising, to some extent, the effects of such actions upon the children and suggesting that there is little, if any, consequence for them, arising from such horrifying circumstances in their young lives.
By the same degree I have concerns in relation to the father. He appears to, as noted by Ms S, blame the mother for the circumstances that have been forced upon he and the children. Whilst such actions are understandable and such reactions and emotions are a direct consequence of the dreadful circumstances of the family, it is also clear that the father has a residual distrust, it was referred to by his counsel a number of times, in the mother and her state of health, such that he is unable, unfortunately, to get over a situation of concern with regard to the possible consequences for the children of any long-term interaction with the mother, at least at this time.
It would seem to me that the father’s specific request, for example, for another report to be prepared, addressing comprehensively issues in relation to this matter is one more attempt by him to perhaps put his own demons to rest, in relation to the matter. But I must say that, as was emphasised by counsel for the mother, I am not at all satisfied that a further report addressing everything that the father might see as significant will necessarily put his demons to rest.
The issue is one of trust by each parent, in the other, and is a difficult issue that cannot be rectified by experiences and orders of a court, but would, I would think, be more possibly rectified by therapeutic involvement for both of the parents as well as for the children. The father’s concerns of distrust in relation to this matter, is an issue which needs to be addressed just as clearly as the mother’s own psychological difficulties and concerns.

Having said all of that, the fact here is that I must deal, at least on an interim basis, with what arrangements should be put in place with regard to the short-term parenting of these two little girls. It was understandable, and I noted it earlier, that the position taken by the mother’s counsel in relation to these proceedings was to say, simply, that if the father could trust the mother for two days or three days or now, as proposed, five days in each fortnight, what distinction could properly be drawn between that and seven days, as proposed by the mother?
Similarly, the mother’s position, in relation to saying that the father had been unreasonable in the changes and expectations forced upon her in relation to the matter was understandable.
However, also understandable were the father’s concerns in relation to the children and particularly the impact of the previous events of February and March 2012 upon X. I do not know the answer in relation to this matter, and even with the assistance of doctors and psychologists, the situation is still unclear.
Though what is known is that the paramount consideration in respect of all proceedings that come before this court, dealing with family law matters is to ensure that, in children’s matters, their welfare and the best interests are to the fore. There are no special clues or guidance in relation to how such a discretion in a court should be exercised, but I am mindful of the comments of the High Court of Australia in M & M (1988) FLC 91-979. There the High Court was dealing with issues of sexual abuse and, of course, that does arise here, but it more widely is able to be considered in relation to any issues with regard to the benefits and detriments to a child, in interaction with one or other of the child’s parents.
There it is noted that the court spoke about the issue of an unacceptable risk. It was speaking of an unacceptable risk of sexual abuse but, just as clearly in a situation such as this, the court must deal with a situation of whether there is an unacceptable risk of harm, psychological or emotional to a child, if situations were to change. In the CCH commentary in volume 1 at page 13,214 the learned authors make the following comments:
The High Court unanimously upheld the Full Court decisions and said that the ultimate and paramount issue to be decided in custody or access proceedings is whether the making of the order sought is in interests of the child’s welfare. The resolution of an allegation of sexual abuse against a parent is subservient to the court’s determination of what is in the child’s best interests.
The High Court said that the courts have tried to achieve a balance between the risk of detriment to the child from sexual abuse and possibility of benefit to the child from parental access. A court will not make an order for a child to live with, or spend time with, a parent if it would expose the child to an unacceptable risk of sexual abuse.
As I say, that is not the situation here but it is clearly able to be extrapolated into circumstances where there is a concern with regard to emotional harm to a child and it is touched on by Ms G and Ms S, in their respective reports and assessments.
I would think that the father needs to deal with the fact that the mother has, over the last 14 months, moved forward considerably. One could not imagine the stressors that have been brought to bear upon her with the breakdown of her marriage and her own mental health issues, yet for 14 months she has progressed well. Qualified psychiatrists have said that she is dealing with the issues and that there is, as best there can be assessed, no likelihood of relapse into the suicidal ideation which she experienced in February and March 2012.
By the same token, there must be a cautionary path taken in respect of a resumption of equal time with the mother and the father, where there are still some overriding or lasting concerns in relation to the children and, in particular, X’s issues with regard to the mother. Ms S, I think, summarised it best in her report when she spoke of the mother’s minimisation of the concerns that obviously arise in relation to the children and, at the same time, the father’s exaggeration or overemphasis of the concerns in relation to the children.
I do not know what the future holds, other than to say that this matter needs to be more fully investigated and perhaps the issue of the father’s own concerns and mistrust in respect of the mother needs to be dealt with. But what overridingly is significant here, and what finally influences me in respect of the proceedings, is to ensure that the children are not in any way put in a situation where there may a risk of emotional harm, arising from circumstances beyond the control of either party.
There are difficulties that need to be addressed by the parents, and there are responsibilities that the parents have in ensuring that, in particular, X’s issues with regard to her mother and interaction with her mother are dealt with so that in the best interests of both children, there can be a full and meaningful relationship with each parent.
At the present time I intend, as would be obvious I hope, to err on the side of caution in respect of this matter, at least until such time as there can be some further addressing of the issues in respect of the therapy of the child and perhaps a final report or assessment in which the father has his concerns laid to rest. There is no punishment that should or could appropriately be meted out. There is only support and nurture that must be provided for the mother in relation to this matter, and I have no doubt that unless something untoward arises over the next weeks or months, these children will be spending equal time with each of their parents.
But the mother must realise that there has been serious concerns and consequences for the children as a result of her illness 14 or 15 months ago, and that must also be taken into consideration and more gentle or slow approach taken to ensure that when there is finally equal time, and as I say, I could not image that unless something catastrophic were to arise that that would not be the ultimate outcome in relation to the matter, then that is the course to be followed.
I’m of the view, therefore, that it is appropriate, particularly when one considers the paramount consideration, being the welfare of the children, and of course the need to foster a meaningful relationship with both parents, but to balance that against the need to protect a child from emotional, psychological, or other harm, that it is appropriate that the orders generally proposed by the father, as amended at the commencement of the hearing in relation to proceedings before me, should be ordered.
Accordingly, the orders that I intend to make in relation to this matter until further order are generally a reflection of the proposals of the father in respect of the matter, though not entirely reflective of that.
I do not intend to make a specific order in relation to the father dealing with his own issues in relation to trust, but for what it was worth would recommend that the father consider such issues in relation to enabling this matter to move forward.
Insofar as a further assessment is concerned and is sought by the father in relation to this matter, I am concerned that there have been already a number of assessments or reports in relation to the proceedings. I would be more inclined to the view that the proper course would be for Dr M to provide an updated or addendum report in relation to his recommendations and concerns with regard to the mother, following on from the preparation or provision to Dr M of the Court material filed on behalf of both parties in addition to an opportunity being provided to Dr M to peruse the subpoena material that has been produced in relation to this matter.
It would certainly in my assessment at least, be a less expensive process than that which would be involved in a fresh mind being brought to bear in relation to the assessment of the mother and the expensive perusal and consideration of documentation that would be required in relation to the proceedings.
I intend to make an order in that respect, therefore, in relation to the matter, but will grant liberty to apply once the addendum report is to hand in relation to the proceedings. I of course intend to direct that my reasons be published in relation to this matter, and would enquire of the legal representatives then where this matter is to go, being mindful also of course of the fact that the father proposes that there should be orders made in relation to property proceedings in relation to the matter.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Coker.

Date: 19 July 2013

[2013] FCCA 872

18 June 2013

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