Grant and Attard

FAMILY COURT OF AUSTRALIA

GRANT & ATTARD

[2018] FamCA 1019

FAMILY LAW – CHILDREN – where the child lives with the father – where the child currently spends supervised time with the mother – where the father seeks that the child continues to spend supervised time with the mother – where the mother seeks an equal care arrangement – where the father seeks sole parental responsibility for the child – where the mother seeks an order for equal shared parental responsibility – where the Independent Children’s Lawyer seeks that the mother spend supervised time with the child – where the mother has previously made allegations that the father is a risk to the child but no longer relies on those allegations – where the father alleges the mother is a risk of psychological abuse towards the child – finding that the mother is an unacceptable risk – order made that the child continue to spend supervised time with the mother – presumption of equal shared parental responsibility rebutted – order that the father have sole parental responsibility for the child.

Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 64B(2)(g), 65DAC.

M v M (1988)166 CLR 69
A v A (1998) FLC 92-800

APPLICANT:

Mr Grant

RESPONDENT:

Ms Attard

INDEPENDENT CHILDREN’S LAWYER:

Clark Family Lawyers

FILE NUMBER:

MLC

10298

2015

DATE DELIVERED:

6 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

12,15,16,17,18,19,22,23, 24 & 25 January 2018

DATE OF LAST SUBMISSION:

17 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fronistas

SOLICITOR FOR THE APPLICANT:

Kyrou Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Teicher

SOLICITOR FOR THE RESPONDENT:

Vessali Legal Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Lethlean

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clark Family Lawyers

Orders

That all previous parenting orders be discharged.
That the father have sole parental responsibility for the child, B born … 2007 (“the child”).
That the child live with the father.
That the child only spend supervised time with the mother at her expense at G Group or such other family contact centre or supervisor as may be agreed between the parties on a fortnightly basis for at least two (2) hours per fortnight, save that during school holidays this be suspended if the child is away on holiday.
That the parents communicate with each other, by way of the “MyMob” telephone application for the purposes of communication about the spend time arrangements.
That the father communicate with the mother, by way of the “MyMob” telephone application, of any illness, accident or injury suffered by the child and advise the mother as soon as practicable of any treating medical practitioner and authorise the mother to speak to any treating medical practitioner.
That the father keep the mother advised of his current address and telephone number and notify the mother of any change of address in writing within seven (7) days.
That the child continue to be enrolled and attend H School, Suburb J.
That pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of the child save as otherwise provided by these orders, the mother be and is hereby restrained by injunction, whether by herself, her servants or agents or whosoever otherwise from:
(a) Going to or remaining within a kilometre of:
(i)Any premises which the child may be residing;
(ii)H School, Suburb J, Victoria or any premises at which the child attends school or other premises at which the child may from time to time attend or be enrolled in for the purposes of education or child care.
(b)Approaching the child, removing, taking possession of the child, or causing the child to be removed from the father’s care.
That by no later than 4.00pm on 13 December 2018 the mother deliver any and all passports in her possession, custody, or control relating to the child B born ... 2007 to the Registrar of the Family Court of Australia in Melbourne.
That upon receiving any passport for the child B born ... 2007, the Registrar of the Family Court of Australia shall notify the father who shall then collect the passport/s from the Melbourne Registry within seven (7) days of notification with the presentation of photographic identification.
That pursuant to section 11 of the Australian Passports Act 2005 (Cth), the father be permitted to obtain a passport for the child B born ... 2007 in the absence of consent from the mother.
That the Independent Children’s Lawyer be discharged.
That all extant parenting applications be dismissed.

IT IS NOTED:

That pursuant to sections 65DA(2) and 62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders an details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10298 of 2015

Mr Grant

Applicant

And

Ms Attard

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of 10 year old the child bring competing applications for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The child is the only child of the marriage and post separation initially lived with the mother. Since October 2016 after interim orders were made by Senior Registrar Fitzgibbon the child has lived with the father and spent supervised time with the mother at a contact centre.
The mother seeks that the child live with the parties on an equal basis. The father seeks that the child continue to spend supervised time with the mother and live with him. The Independent Children’s Lawyer supports the father’s proposal that the child spend only supervised time with the mother.
The focus of the trial was upon whether the mother poses an unacceptable risk of psychological harm to the child.
Unfortunately delay has been a feature of this case for reasons which follow.
The trial was delayed because both parties had failed to comply with procedural orders made on 31 January 2017 for the filing of trial material. At the case management hearing on 8 August 2017 the mother indicated that she proposed to engage with a psychiatrist and the trial was adjourned on the application of the mother and the Independent Children’s Lawyer for the filing of trial material and to allow an opportunity for the mother to obtain evidence about her mental health as recommended by psychiatrist Dr E who had assessed both parties. The mother’s eligibility for legal aid was not clear at that time.
Ultimately the mother consulted a consultant psychiatrist, Dr K on two occasions and relied upon his evidence. Dr K was not the mother’s treating health professional.
The trial was interrupted because the mother attended the Emergency Department of L Hospital and M Hospital due to stress. This resulted in further delay. Written submissions were ordered by consent at the conclusion of the evidence in the trial due to the time lost during the trial when the mother attended those hospitals.
The delivery of this judgment was delayed because of the mother’s failure to comply with the timeframe set by agreement for the filing of her written submissions. The delay on the part of the mother of almost 7 months is detailed further below.

Background

I am satisfied on the balance of probabilities of the following background facts.
The parties married in 2008 and separated on 1 February 2014.
The child is the only child of the marriage and was born in 2007.
Historically there has been an acrimonious relationship between the parents. The mother applied for and obtained an interim intervention order against the father in his absence on 7 August 2015. Her application for an intervention order was subsequently withdrawn when the matter was listed for a contested hearing in the Magistrates’ Court.
The father is aged 40 and lives with the child in rented premises in Suburb N. He has a contract with his current employer in Suburb J until 28 January 2019.
The mother is aged 36 and has been employed with the Suburb O Council for the past seven years and since March 2015 has worked 24 hours per week. The mother gave evidence she is currently working Tuesday, Thursday and Friday each week and additionally two Sundays a month. She stated she works from 10 am-3 pm on Tuesdays and Thursday and from 10 am-6 pm on Fridays. When she works on Sundays she works from 12 pm-5 pm.
The mother’s employment is currently restricted to light duties because of a medical condition, confirmed by her employer in a letter dated 8 May 2017 annexed to the mother’s affidavit.[1] The mother lives alone but previously lived with the maternal grandparents in Suburb P.
[1] Affidavit of mother filed 30 November 2017, Annexure CA-3.
There is no dispute that the mother has suffered from a major depressive disorder which was officially diagnosed on 15 August 2008. The mother deposed that she has experienced depression since late 2004 to early 2005.[2] The mother was prescribed antidepressant medication for the first time in May 2009 which she took for a period of six months. She resumed the medication for a period of about three years during the marriage from mid-2010.
[2] Ibid par 38.
In June 2012 the maternal grandparents filed an Initiating Application in the Federal Magistrates’ Court, as it was then known, seeking orders to spend time with the child. Ultimately on 2 August 2012 a Notice of Discontinuance was filed. There is a dispute about the circumstances which led to the Notice of Discontinuance being filed.
After separation in February 2014, the child lived with the mother and the mother regularly facilitated the child spending time with the father including overnight time until restricting time to daytime visits only in early 2015 and ceasing time completely on the father’s evidence in July 2015.
The father commenced proceedings in the Federal Circuit Court on 5 November 2015. On 2 December 2015, Judge Jones made orders for a section 11F Memorandum to be completed by a family consultant and for the father to spend weekly time with the child. The father spent time with the child on 5 December 2015, the first time since July 2015, however the mother made allegations to police on 21 December 2015 that during this visit the father threatened to kill her family, and unilaterally ceased time with the father from that time.
On 29 February 2016, Judge Riley following the recommendation of the family consultant, varied the orders of 2 December 2015 to continue to provide for the child to spend weekly time with the father. Those orders were not complied with by the mother. The proceedings were transferred to this Court.
Registrar Mestrovic on 30 March 2016 made orders for the appointment of an Independent Children’s Lawyer. The matter then proceeded to a First Day Hearing before me on 20 May 2016 where interim consent orders were made for all time with the father to be suspended and the parties to attend upon Dr E for a psychiatric assessment and upon Ms C with the child for child inclusive therapy. A notation was included in the orders that the father consented to the suspension of time without admitting to the necessity of same.
The consent order provided that the parents and the child attend upon Dr C as directed by her for the purpose of child inclusive therapy and such other treatment as directed by her, at the parties equal expense. The parents were ordered to comply with all reasonable directions as to attendance and therapy including directions as to the reintroduction of time, if any.
Ultimately the mother did not cooperate with Dr C’s proposal for the child to see the father at the appointment. The mother, in company with the maternal grandmother and the child, left the appointment with Dr C on 22 September 2016.
Dr E prepared a report about the mother on 3 October 2016, after examining her twice on 24 August 2016 and 28 September 2016.
On 26 September 2016 Dr C emailed the solicitor for the Independent Children’s Lawyer.[3] The email expressed considerable concern for the child and described the mother and maternal grandmother as being “very agitated about my wish to have the child meet with his father”. Dr C wrote that the mother threatened to leave the appointment with the child on a number of occasions asserting that she had further allegations of abusive parenting against the father. Dr C wrote that the child expressed interest in a meeting with the father but that the mother “steadfastly refused to permit the meeting to go ahead.” She noted that the child said that he did not expect that his mother would allow the meeting. Dr C concluded:
[The mother] was agitated and at times incoherent in conveying her concerns. She seemed unable to appreciate my clinical observation that a meeting between father and child in my presence, would enable me to assess the relationship and formulate an appropriate treatment plan for the child.
[3] Affidavit of the father filed 1 December 2017, Annexure MG-27.
The mother disputes the contents of this email and Dr C was not a witness in the trial. The father submitted that no objection was made by the mother to the evidence of the email in the trial.[4] However the mother ultimately reluctantly accepted in cross-examination that she did not comply with Dr C’s direction for a meeting to take place between the child and the father.
[4] Submissions of the father filed 16 August 2018, par 23.
It emerged for the first time during cross-examination in the trial that the mother took the child to Suburb Q Police Station where he was interviewed by police in September 2016, some days after the mother had seen Dr E.

Interim hearing before Senior Registrar on 13 October 2016

The mother was represented by counsel before Senior Registrar Fitzgibbon on 13 October 2016 where interim orders were made suspending all prior orders for the child to live, spend time or communicate with the mother. Interim orders were made for the child to live with the father, with changeover to occur at the office of the Independent Children’s Lawyer by 7.00 pm on 13 October 2016.
At that hearing Dr E gave oral evidence.
The matter was again listed before the Senior Registrar on 14 October 2016. At that hearing, interim orders were made for the mother, her servants and agents including but not limited to the maternal family spend no time with nor communicate with the child, nor attend in the vicinity of any school in which he was enrolled or any place he was living.

Transcript of the evidence of Dr E at the interim hearing 13 October 2016 (Annexure MG-18 to the father’s affidavit 1 December 2017)

The transcript of evidence of Dr E at the interim hearing on 13 October 2016 was Annexure MG-18 to the father’s affidavit filed 1 December 2017.

The focus of the cross-examination of Dr E during the interim hearing on 13 October 2016 was the mother’s mental health. The mother’s General practitioner was Dr R.
During evidence in the interim hearing on 13 October 2016, Dr E was not prepared to change his original report about the mother but raised the issue of “altruistic filicide”. He stated that it was a complex case and after having spoken to the mother’s General Practitioner, he:
…certainly formed the impression that there was sufficient information to suggest that there was a very significant likelihood that she had in the past been psychotic, out of touch with reality, and then formed the view there – this – there was a significant possibility that over the last 6 to twelve months there had been a re-emergence or a continuation of long-standing – maybe low-grade delusion, but delusional thinking, nevertheless – and that she had started to then bring the child into being the focus of possible psychotic thinking – delusional thinking…[5]
[5] Transcript of proceedings on 13 October 2016, page 4, line 9.
Dr E went on to say that he was concerned about three things, “a psychotic view about the child”, “a deterioration” and that the only way to get some confidence about a diagnosis would be for the mother to engage with a psychiatrist. He referred to the fact that it is not always possible to make a diagnosis until a relationship has formed and more tests are done or in the case of psychiatry, for more interviews to occur and he stated that the issue of altruistic filicide came up because of the cocktail of features and circumstances.[6]
[6] Ibid page 4, line 40.
Dr E stated that it seemed to him that this was “a ripe kind of situation for the mother to be absolutely devastated, were she to lose her child. And if she was then to have her child, knowing that she was going to lose her child – that she could easily equip… her depression”. He then referred to his experience visiting a community mental health centre and stated:
…the classic scenario of a woman who had committed infanticide or filicide that harmed their child. It was usually a case of – well, I did it because I thought the world was so bleak for my child that they were going to – they were better off not to be there than to be facing what they would be facing. And, of course…I think she has this perception that were the child to be with the father the child would be very badly treated by a monster of a man.[7]
[7] Ibid page 5, line 7.
During the interim hearing on 13 October 2016 Dr E confirmed that he could not make any diagnosis of the mother. However he was concerned because when he interviewed the mother she had an unwavering belief that the child should not spend any time with the father and she proposed to take the child to the police at SOCIT to be interviewed. When he was told that there had been a significant shift and it was proposed that the father spend unsupervised time with the child he found this to be entirely at odds with the mother’s presentation. He stated that the mother has certainly “got a very significant mental illness...or mental disorder” and a sudden change of view expressed that “it’s okay to have time with the father” was completely at odds with her belief.[8]
[8] Ibid page 17.
When asked in cross-examination about the mother’s proposal for the child to spend time with the father each alternate weekend, but her statement that the child should stay with her, Dr E stated that this did not give him any comfort because he had not spoken with the mother and he did not understand her mental state. He said “my anxiety about that would be that’s a very temporary, desperate agreement that risks coming unstuck given everything else she has told me and everything else she has told others”.[9]
[9] Ibid page 14, line 41.
In evidence Dr E recommended that the mother consult a forensic psychiatrist.[10]
[10] Ibid page 16, line 31.
The mother failed to comply with the orders of 13 October 2016 to take the child to the office of the Independent Children’s Lawyer that evening and instead together with the maternal grandmother took the child for an interview with the police as outlined earlier.
On 14 October 2016 the police issued a Safety Notice against the mother with the child named as the protected person.[11]
[11] Affidavit of the father filed 1 December 2017, Annexure MG-20.

The father attached the Safety Notice to his affidavit at MG-20. The Safety Notice prohibited the mother from committing family violence against the child, from approaching, telephoning or otherwise contacting the child and from coming within five metres of the child or within 200 metres of S School. The Safety Notice is dated 14 October 2016 and included a summons to the mother to attend the Suburb D Magistrate’s Court on 18 October 2016.
An Interim Intervention Order against the mother on the child’s behalf was sought and obtained by Victoria Police at the hearing on 18 October 2016. The mother deposed that the Interim Intervention Order was granted without her consent.
She deposed to a further hearing on 23 May 2017 wherein “the conditions in the Interim Order were reduced”.
The Interim Intervention Order dated 23 May 2017 listed the child as the first named affected family member.[12] The conditions of the order prohibited the mother from committing family violence against the child and from going within 200 metres of S School or any other place where the child lives or attends school or childcare. The order included the provision that the mother may do anything that is permitted by a Family Law Act order or written agreement about child arrangements.
[12] Affidavit of the mother filed 30 November 2017, Annexure CA-12.
At the time of trial this Interim Intervention Order was in place with a future mention date listed on 15 March 2018.
On 20 October 2016 Justice Cronin made interim orders suspending the child’s communication and time with the mother. Orders were made for the child to live with the father and for the mother and all her family members to be restrained by injunction from spending time with or communicating with the child or from being in the vicinity of his school or home. Justice Cronin made orders for supervised time to occur between the child and the mother on a fortnightly basis.
The mother was interviewed by Dr K, Consultant Psychiatrist on 22 May 2017 for a psychiatric report at the request of the mother’s solicitors. He prepared a report dated 29 June 2017.
At the request of the mother’s lawyers a supplementary report was made by Dr K on 21 November 2017. Dr K interviewed the mother again for that report on 14 November 2017.
The ten day trial commenced before me on 12 January 2018.

Interim Orders at conclusion of the trial

When the child went to live with the father he did not change schools and continued to attend school quite a distance from the father’s home which required the child to spend a lot of time travelling between home and school.
At the conclusion of the evidence in the trial the father proposed that orders be made on an interim basis pursuant to his Application in a Case filed 27 January 2017 which he amended in Court on 25 January 2018. The father sought that the following order be made on an interim basis:
That the child, [B] born ... 2007 be enrolled in and attend [H School, Suburb J] at the commencement of the school year in 2018.
The evidence of the family consultant in the trial supported the father’s application.
At the conclusion of the trial on 25 January 2018, I briefly gave reasons and made that order until further order.
It was appropriate and in the best interests of the child to make the orders for the change of school because the child was living with the father on a fulltime basis under the interim orders. The school year was about to commence. This was intended to give the child certainty about his schooling in the immediate future in circumstances where a delay was inevitable due to the need for the filing of written submissions.

Delay in filing submissions

The parties and Independent Children’s Lawyer were ordered to file written submissions at the conclusion of the evidence in the trial but failed to comply with the timetable for filing which caused considerable delay.
The order dated 25 January 2018 set out the following timetable:
…
2.The Applicant file and serve final written submissions by no later than 4.00 pm on 16 February 2018.
3.The Respondent file and serve final written submissions by no later than 4.00 pm on 23 February 2018.
4.The Independent Children’s Lawyer (ICL) file and serve final written submissions by no later than 4.00 pm on 2 March 2018.
5.The Applicant and Respondent file and serve any reply to final written submissions of the parties or the ICL by no later than 4.00 pm on 9 March 2018 if they so desire.
6.The final written submissions or reply if any by the parties shall not exceed fifty (50) pages in length.
On 1 March 2018, the mother’s then solicitors emailed chambers a letter signed by all parties detailing an agreement for an extension of time to be granted in the filing of submissions. The letter noted that the father’s written submissions were filed on Monday 26 February 2018 (however they were filed on 23 February 2018) and indicated that the mother sought an extension of time to Monday 5 March 2018 to file her submissions with an associated extension of time for the Independent Children’s Lawyer’s submissions.
On 11 April 2018, chambers emailed all parties noting the mother had not filed her written submissions.
Over a month later on 14 May 2018 the Independent Children’s Lawyer responded that counsel required the mother’s submissions before filing submissions for the Independent Children’s Lawyer and was thus waiting on the mother’s counsel before he could proceed.
On 16 May 2018, the mother’s former solicitors emailed chambers, the father and the Independent Children’s Lawyer indicating that counsel for the mother anticipated that the submissions would be finalised by Friday, 25 May 2018.
On Friday 25 May 2018, chambers emailed all practitioners and advised that the mother’s submissions had not been received. In response, at 4.30 pm on the same day the mother’s then solicitors advised that counsel for the mother had advised that the submissions would be finalised the following day. The mother’s former solicitors in the email further stated “We apologise but we are unable to provide any further explanation”. The mother’s then solicitors sent a further email at 4.52 pm stating that they had been contacted by the mother’s counsel. The mother’s then solicitors indicated that counsel for the mother advised she had been in touch with counsel for the Independent Children’s Lawyer who had spoken with chambers and advised chambers that counsel for the mother would provide the mother’s submissions by Tuesday 29 May 2018, with the Independent Children’s Lawyer to provide submissions the following week.
On Monday 28 May 2018, the mother’s then solicitors contacted chambers along with all parties and advised that they had been contacted by counsel for the mother who had advised she would have the submissions for the mother finalised by Wednesday 30 May 2018.
On 31 May 2018 at 12.36 pm, the mother’s then solicitors again contacted chambers and the parties to advise that they were still awaiting receipt of the submissions from the mother’s counsel.
On 31 May 2018 at 3.46 pm, my Associate emailed all parties including counsel the following:
Dear Practitioners,
I refer to the below correspondence and the previous correspondence received in this matter with respect to the written submissions.
I note that the orders for the filing of written submissions were made on 25 January 2018 and remain in force even though they have not been complied with.
I note that the submissions for the father were filed on 23 February 2018, seven days after the proposed filing date. I note that we have still not received the submissions for the mother, due on 23 February 2018 over three months ago.
I note that the Independent Children’s Lawyer has indicated that their submissions are to be filed pending their receipt of the mother’s submissions so they can be considered in due course.
I wish to advise the parties that judgment can only be reserved by Her Honour from the date of receipt of all submissions in this matter. The delay by the practitioners for the mother in the provision of final submissions will significantly affect the delivery date of judgment considering that the trial was concluded on 25 January 2018 however all material has not yet been provided.
Her Honour cannot formally reserve judgment until this occurs.
Kind Regards,
Associate to Justice Thornton.
No reply was received.
On 5 June 2018, the mother filed a Notice of Address for Service. Her solicitors, Vessali Legal did not file a Notice of Ceasing to Act.
In response to this document being filed, the parties were emailed by my chambers. The email noted the mother’s Notice of Address for Service filed 5 June 2018 and that she was now self-represented. The mother was reminded of the orders made and given until 12.00 pm on 25 June 2018 to file the written submissions.
My chambers wrote to all parties on 29 June 2018 referring to the mother’s email request for an extension which had been received in response to the email, noting that an extension until 12.00 pm on 13 July 2018 would be granted in the event the parties did not oppose such an extension by way of return email.
On 4 July 2018, the mother emailed chambers and the parties advising the following:
…I am doing everything in my power to have the submissions completed as ordered. I would be unable to complete the submissions by that time. I have only just this week engaged representation. I humbly request that court allow them time to respond to these matters…
On 5 July 2018, the solicitors for the father advised chambers and all parties by email that the father opposed the granting of an extension.
On 6 July 2018, the Independent Children’s Lawyer filed their written submissions.
On 11 July 2018, the Independent Children’s Lawyer advised chambers and all parties by way of email their opposition to the request for the granting of an extension to the mother. The Independent Children’s Lawyer stated:
We have been advised by our counsel that it is his understanding that [the mother’s] Counsel at the Final Hearing had indeed prepared her written submissions and provided these to [the mother’s solicitors] for finalising prior to the last adjourned date and these submissions were also provided to [the mother]. It was soon thereafter that [the mother] ceased the retainer of [her solicitors].
As requested by the Independent Children’s Lawyer, the matter was listed for mention at 9.30 am on 20 August 2018. My chambers advised the parties by email that as the mother’s application for an extension of time to file was opposed it could not be granted in chambers and submissions thus remained outstanding in accordance with the Orders made on 25 January 2018.
On 12 July 2018, my chambers received correspondence from Suburb T Legal Service sent to all parties advising that the mother was seeking assistance from the service but that the service had no capacity to represent the mother. The email stated:
While we acknowledge the history of extensions of time, we do reiterate [the mother’s] application for a further extension of time, given these circumstances. A realistic option would be to grant an extension of time up to the mention date on 20 August 2018. It is my view that it will take at least a few weeks to find a lawyer to assist, and then to get across the file, if not longer.
In reply to the email from Suburb T Legal Service on behalf of the mother, both the Independent Children’s Lawyer and the father’s solicitors respectively emailed Suburb T Legal Service and chambers stating they opposed the granting of any extension.
On 16 July 2018, Suburb T Legal Service emailed chambers to advise that the mother had requested that they cease acting in the matter.
On 20 July 2018, my chambers again emailed all parties confirming the Mention of the matter on 20 August 2018 and advising that all parties, practitioners and counsel involved in the trial were required to attend.
Several emails then passed back and forth between the parties, solicitors and counsel concerning the purpose of the Mention, the mother’s progress in obtaining legal representation and completing her written submissions.
On 3 August 2018 my chambers advised the mother that the current order dated 25 January 2018 establishing the timetable for the filing of submissions was still in operation. Chambers advised that the matter was listed due to the mother’s failure to comply with the order and the outstanding written submissions.
On 6 August 2018, the former solicitors for the mother advised the following by email:
Dear Associate, Practitioners and [the mother]
Further to the email below from [the solicitor for the Independent Children’s Lawyer], we wish to clarify our position.
[The mother’s] submissions were provided to this firm by Counsel at 4.56 pm on Monday 4 June 2018.
They were emailed to [the mother] at 5.35 pm on that day.
At 11:39 am on Tuesday 5 June 2018, this firm received an email from [the mother] simply stating that she had filed a Notice of Address for Service.
At 11:40 am on Tuesday 5 June 2018, this firm responded by email advising that the submissions needed to be filed and asking if [the mother] was telling us we were not to file the submissions. No response was received.
The submissions were again emailed to [the mother] at 5.50 pm on Tuesday 5 June 2018, and a hard copy was sent to her address by prepaid post on the same day.
We trust this clarifies this firm’s position.
On 4 August 2018 the mother e-filed her written submissions.
In order to avoid further costs on 9 August 2018 my chambers confirmed by email that the Mention date of 20 August was to be vacated.
On 16 August 2018 the father filed his written submissions in reply.
On 17 August 2018 the Independent Children’s Lawyer filed written submissions in reply.

THE ISSUES

The parties and the Independent Children’s Lawyer agreed that the issues for determination were as follows:
·If the child lives with the mother or spends unsupervised time with the mother is there an unacceptable risk to the child?
·Whether the mother has the parenting capacity to facilitate a relationship between the child and the father?
·Whether the presumption of equal shared parental responsibility has been rebutted?
·Whether there should be a change of school for the child?

Evidence

The documents relied upon by each party are listed in Annexure A. Each party and the following witnesses were cross-examined during the trial:
·Ms U Attard, the maternal grandmother;
·Dr F, the family consultant;
·Dr E, psychiatrist;
·Dr K, forensic psychiatrist.
The parties made no submissions about the single expert rule. However submissions were directed to the weight to be given to the expert evidence. Dr K was not the mother’s treating psychiatrist.
A consent order was made on 10 January 2018 for further documents to be provided to Dr E and Dr K. Copies of the s11 F Memorandum, Family Report, s 69ZW Report and Updated Report together with trial material was ordered to be provided to both psychiatrists. Amongst other documents it was ordered that Dr K be provided with the transcript of Dr E’s evidence from the interim hearing on 13 October 2016.
The parties were ordered to jointly instruct Dr K and Dr E to confer and provide a memorandum setting out issues of contention, points of agreement and any risks for the child and his welfare in the event of unsupervised time or living with the mother. The Independent Children’s Lawyer was ordered to provide the family consultant with all reports from Dr E and Dr K and the memorandum of the experts.
Dr E and Dr K conferred by telephone. Unhelpfully, no joint memorandum was prepared. Dr E prepared a letter dated 22 January 2018 (Exhibit ICL 1). Dr K provided a supplementary forensic psychiatric report dated 23 January 2018.
On 13 August 2018 the mother filed another document purporting to be written submissions. This document appears to be other evidence the mother has produced. I have not relied on this document because it raises new evidence which was not evidence in the trial.
I have carefully considered the written submissions and the evidence and set out below the relevant evidence. I have not referred to every piece of evidence. The fact that particular evidence is not referred to does not mean that it has not been considered.

Standard of Proof

When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities (Evidence Act 1995 (Cth), s 140). Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.

The Applications

At the commencement of the trial the Independent Children’s Lawyer did not take any position, proposing to await the psychiatric evidence. The proposals of the Independent Children’s Lawyer were contained in the written submissions filed after the conclusion of the trial.

The father’s application

The father ultimately sought orders as set out in his Amended Initiating Application filed 11 July 2017 as follows:
(1)That the Applicant Father have sole parental responsibility for the child, [B] born ... 2007 (“the child”);
(2)That the child live with the father;
(3)That the mother and all of her family members are restrained by injunction from spending time with or communicating with the child other than as otherwise provided by these orders;
(4)That the child spend supervised time with the mother at [G Group] on a fortnightly basis for a maximum of two hours per fortnight, save that during school holidays this to be suspended if the child is away on holiday;
(5)That all costs of the [G Group] contact centre be paid by the mother;
(6)That the mother have no telephone communication with the child;
(7)That pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of the child save as otherwise provided by these orders, the mother be and is hereby restrained by injunction, whether by herself, her servants or agents or whosoever otherwise from:
(a)Going to or remaining within a kilometre of;
(i)Any premises which the child may be residing;
(ii)[S School], Victoria or any premises at which the child attends school or other premises at which the child may from time to time attend or be enrolled in for the purposes of education or child care.
(iii)Approaching the child, removing, taking possession of the child, or causing the child to be removed from the father’s care
(iv)Assaulting, molesting, harassing, emotionally or psychologically abusing the child;
(8)That forthwith the mother deliver any and all passports in her possession, custody, or control relating to the child [B] born ... 2007 to the Registrar of the Family Court of Australia to be held pending further order of the Court;
(9)That the mother be and is hereby restrained from applying for or obtaining a passport in the name of the child, [B] born ... 2007;
(10)That the father be allowed to apply for or obtain a passport in the name of the child, [B] born ... 2007 without the consent of the mother;
(11)That the Registrar of the Family Court of Australia deliver to the father any passport of the child [B] born ... 2007 in the possession of the Registrar of the Family Court of Australia
(12)That the mother shall not without leave of a court having jurisdiction under the Family Law Act 1975 (Cth) institute proceedings under this Act;
(13)That the mother pay the father’s costs of and in connection with these proceedings;
(14)That the Independent Children’s Lawyer be discharged;
(15)That all extant parenting applications be dismissed;
(16)That all previous parenting orders be discharged save for any orders in relation to costs.
(17)That pursuant to sections 65DA(2) and 62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders an details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

The father’s Amended Initiating Application was filed prior to the father accepting a teaching position at H.

The mother’s application

The mother sought orders as set out in her Amended Response to Initiating Application filed 30 November 2017 as follows:
(1)That the father and mother have equal shared parental responsibility for [B] born ... 2007 (“the child”)
(2)[The child] live with the father and mother on a week about basis throughout the year including all holiday periods from after school, or 4.00pm if not a school day, each Monday to the commencement of school, or 9.00am if not a school day, on the following Monday, or as agreed between the parties.
(3)The parent with whom the child is not spending time, communicate by telephone with the child on Thursday between 6.30 pm and 7.00 pm, with that parent to call the child’s mobile telephone.
(4)[The child] spend time with the Father from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in even numbered years, and the child spend time with the mother from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in odd numbered years.
(5)If the child is not in the care of the mother on Mother’s Day, then the child’s time with the Father shall be suspended from 10.00 am until 6.00 pm on Mother’s Day.
(6)If the child is not in the care of the father on Father’s Day, then the child’s time with the mother shall be suspended from 10.00 am until 6.00 pm on Father’s Day.
(7)Changeover shall be at the school if the Monday is a school day, or at a location to be agreed between the parties in writing if the Monday is not a school day.
(8)[The child] attend [S School] unless agreed in writing between the parties.
(9)The parties keep each informed of their current address and telephone number and notify the other party of any change in writing within 7 days.
(10)The parties attend upon a Family Therapist to be agreed between the parents, for the purpose of assisting the parents to co-parent the child, and the cost of this therapy to be shared equally by both parents.
(11)For the purposes of communication in relation to the child’s time with each parent, the father and mother communicate by way of the MyMob phone App., and use of the same will be sufficient evidence in writing of agreement for the purposes of these orders.
(12)The father and the mother communicate by way of the MyMob phone App. of any serious illness or accident suffered by the child during a period in his or her care and advise the other as soon as practicable of each treating medical practitioner or the like professional and authorise each of them to speak to the other parent as may be required.
(13)The father and mother, and their servants and agents, are restrained from:
(a)Denigrating each other or their family to [sic] in the presence and/or hearing of the child and from permitting anyone else to do so;
(b)Discussing these proceedings with the child or in their [sic] presence and/or hearing and from permitting anyone else to do so.
(14)The Independent Children’s Lawyer be discharged.
(15)All extant applications are otherwise dismissed.

The Independent Children’s Lawyer’s proposal

The Independent Children’s Lawyer proposed the following orders as set out in final submissions dated 6 July 2018:
(1)[The child] to live with the father;
(2)The Father have sole parental responsibility for the child;
(3)[The child] spend time with the Mother, supervised by an independent supervision service provider, at her own cost, for a period of at least 2 hours per fortnight, or at a contact centre (and any time with maternal family members be on the same terms unless otherwise agreed by the father);
(4)The Mother engage with a psychiatrist intensively for assessment/diagnoses and treatment (and such expert/s be provided with evidence, psychiatric reports, the Family Reports, and transcript as deemed appropriate by the Court);
(5)The Mother obtain a further assessment and report to be prepared no sooner than 24 months from the date of the Reasons for Judgment with such report to include all diagnoses, treatment, prognoses, and an assessment in relation to the Mother’s mental/emotional health, views about her own health and welfare, and that of her beliefs and opinions in relation to the Father, and his care for the child;
(6)It be a pre-condition to commencing any further proceedings pursuant to section 64B(2)(g) FLA, that the Mother seek leave of the Court for same from the Trial Judge, if available, supported by an affidavit or affidavits including an MMIP-2 personality test, together with a psychiatric report and any evidence of a material change in circumstances in the Mother’s mental health & well-being, demeanour, and attitude towards, and views about, the Father, so as to seek Orders for any changes to the supervised time with the child and/or any other Orders in relation to care arrangements of the child;
(7)The ICL be re-appointed upon the first return of the leave application; and
(8)Any affidavit material put before the Court in relation to proposed Orders as part of the application for leave, and as determined by the Court, be sent for review and a report by [Dr E] (or such other expert as nominated by the Court or ICL before determining the issue of leave) together with the Reasons for Judgment.

Evidence of the father and mother

The father in his affidavit described the parenting of the child prior to the separation in February 2014. Little turns on this evidence and it is not necessary to set it out in detail. However during cross-examination the father denied that the mother was the primary carer and stated that they cared for the child equally during the marriage.
The mother’s affidavit failed to respond to the much of the father’s affidavit and the events to which he had deposed. Her proposal for equal shared care of the child appeared to be at odds with her evidence which demonstrated a belief that the child has been sexually assaulted by the father.

Allegations of Family Violence

The father deposed that the mother was physically violent on numerous occasions during the relationship and shortly following separation. His affidavit included the following incidents:
·That on or around 12 May 2012, whilst in the kitchen of the former matrimonial home, the mother became aggressive and grabbed a knife from the kitchen bench and “held the knife in her right hand…and raised her right arm up in the air, with the intention of stabbing [the father]”. The father in quick response to this “grabbed [the mother’s] right arm and pulled her down” resulting in her landing on the kitchen floor which subsequently caused her to suffer “bruising on her hip and leg” but the police were not contacted;[13]
·That on a date not specified, the mother and father were in their bedroom in the former matrimonial home and the father was sitting at the foot of the bed while the mother was behaving aggressively and yelling. At a certain point “without any warning” the mother “punched the left side” of the father’s head and as a result, broke his glasses;[14]
·That on a date not specified, the mother “threw a bucket of scalding hot water” on the father;[15]
·That on 1 February 2014 (the date of separation) after taking the child to a show in the city, the father met a female acquaintance and offered her a lift home. As a result of delay in arriving home, the father dropped the son off at the former matrimonial home first. When the father arrived, the mother came “storming down the driveway”. The mother then began trying to attack the female acquaintance of the father by “trying to claw at her” and the father grabbed the mother from behind to protect the female acquaintance. He deposed that the mother was screaming and yelling in the presence of the child and swore at him and said “Leave the child and I alone. Never come back.” He deposed that he left in the car and the child was very distressed and kept repeating “daddy come back”;[16]
·That on 4 February 2014 the mother sent the father an SMS message disclosing that she had smashed his acoustic guitar, pushed his motor bike over and broken a pair of his reading glasses.[17]
[13] Affidavit of the father filed 1 December 2017, par 56(a).
[14] Ibid par 56(b).
[15] Ibid par 56(c).
[16] Ibid par 60-61.
[17] Ibid par 63-64.
During cross-examination the father maintained that the mother was aggressive towards him and had thrown a whole mop bucket full of hot water over him from an upstairs landing. He also maintained that the mother had “pulled a knife” on him in the kitchen referring to the incident on 12 May 2012 in his affidavit. He conceded that he had pushed the mother to the floor as a gut reaction to her holding the knife up.
The mother deposed at paragraph 86 and 87 of her trial affidavit that during the marriage the father subjected her to constant denigration, psychological abuse and physical abuse in the presence of the child.
The mother deposed that the father was “psychologically, emotionally, physically and financially abusive” towards her and described the following events:
·    The father would subject her to taunts, belittling and scrutiny “every day”[18] including calling her a “fucking lazy stupid bitch”[19], “damaged goods”[20] and saying that she was “crazy”[21];
·    That “There were times when I told the father I did not want to have sex but he ignored my wishes. The father would tell me that I was a bad mother when I was depressed he would say that it would be better if I wasn’t around”;[22]
·    That on a date not specified but on a night around the middle of 2008, she was sitting next to the father talking when he “put his full weight against [her] and put his hands around [her] neck”, and whilst making remarks such as “you’ve got a big fucking mouth” and “not talking now, are you?” and that the father was jerking her head. The father then pushed her head over the couch and shoved her one last time. She deposed that she felt for the first time that the father could kill her;[23]
·    That in 2011 she was in a state of exhaustion and that the father insisted she do most of the cooking, all of the washing and complete all housework to an “exacting standard”. She deposed that the father would say things to her such as “…unless you follow my schedule and never question me, you’re useless to me”[24]
·    That on 12 May 2012, the mother was in the kitchen of the former matrimonial home preparing dinner when the father came up behind her, grabbed her by the hands and pushed her from behind with his chest causing her to crouch over. She deposed that the father then shoved his leg against one of her thighs which caused her to fall. The mother’s head “smacked the tiled concrete” and she “blacked out”. When the mother regained consciousness she drove herself to a hospital emergency room but did not report the matter to the police. She deposed that the next day she had developed “a large bump on [her] head” and soreness in her back and elbow;[25]
·    That on 13 May 2012 (Mothers’ Day) following the events that unfolded in the kitchen the day before, the father gave her a Mothers’ Day card which included a picture that he had drawn of her “with a lump on [her] head” and she interpreted this “as though the assault on [her] had been a joke”;[26].
[18] Affidavit of the mother filed 30 November 2017, par 88.
[19] Ibid par 89.
[20] Ibid par 89.
[21] Ibid par 90.
[22] Ibid par 94-95.
[23] Ibid par 93.
[24] Ibid par 106.
[25] Ibid par 107, 110.
[26] Ibid par 110.
The mother deposed that final separation occurred on or around 31 January 2014. She deposed that she had an argument with the father about money and told the father he should leave.
The mother went on to depose that on 1 February 2014, the father had taken the child to a concert that evening and they arrived home around midnight which was later than anticipated by the mother. She deposed that when the father arrived home and she collected the child from the car she saw a woman in the car who she did not know. She deposed that she called the father a “liar” because he had informed her a couple hours earlier that he was on his way home. She deposed that the father drove away in his car, that she then put the child to bed and had the locks changed. She deposed that she damaged the father’s guitar and snapped his glasses in half.
The mother applied for an intervention order against the father on 7 August 2015. An interim intervention order was made that date against the father with the mother and child named as the affected family members. The Application and Summons was annexed to the father’s affidavit (Annexure MG-4). The application makes various allegations against the father including:
·    That on 27 July 2015 the father sent the mother intimidating letters;
·    That on 9 July 2015 the mother discovered the father was coming to her house late at night and stalking her outside;
·    That the father smoked marijuana regularly which made him aggressive;
·    That in September 2014 the father sent the mother abusive messages;
·    That the father has been abusive towards the mother in the past;
·    That when the child was two to three years old the father would abuse him and provided examples.
There was a final hearing for the Intervention Order on 19 January 2016 and 1 March 2016. The father deposed that he “denied the allegations of family violence made against me”. The mother ultimately withdraw her application.
It was put to the mother during cross-examination that the issues of family violence by the father towards her were still at the front of her mind and her concerns of the father. She responded “I don’t think so”. She described being focussed on herself and her own life in the past 14 months.
When asked if she still feared the father she responded that she cannot say what another person will do. She was again asked if she felt that the father would commit family violence towards her in the future. She responded that the best thing anyone can do is prevention and that she has been given skills about prevention.
In his affidavit at paragraph 196 the father denies that he psychologically or physically abused the mother as alleged by her.
The mother made allegations against the father during cross-examination in relation to stalking. When challenged about stalking the mother at her home, the father denied it. However he conceded that on one occasion during his lunchtime he went to the corner near the mother’s house for about 20 seconds because his son was there. He conceded that he was working night shift at the time and by referring to “lunchtime” it may have been in the middle of the night.
The maternal grandmother deposed that the father has been “very controlling” of the mother and that she noticed that the mother was “conflicted between wanting to do the right thing for her family and pleasing [the father]”.
The father did not accept that his affidavit evidence had been made up or was untrue. He was prepared to concede that in the heat of an argument he may have called the mother a “fat slob”, a “fucking lazy stupid bitch”, “damaged goods”, a “wreck” and said that she was “crazy”. He denied that there was any relentless taunting of the mother on a daily basis in front of the child. He denied using other pejorative terms towards the mother such as “slut and mole” and said that those words were not in his lexicon. He was prepared to concede that the words that he used towards the mother were “very hurtful”, and that he was not a “perfect person” but he denied that he was verbally abusive for the duration of the nine year marriage. He otherwise denied the mother’s allegations.

Alleged violence by the father against the child

The mother also described the father as being “psychologically and physically” abusive”[27] towards the child or in the presence of the child.
[27] Ibid par 98.
She deposed that when the child was around two to three years of age the father would often grab the child’s arm and “forcibly throw” him into his bedroom in 2010 and 2011.
Further the mother deposed, without specifying a date, that on one occasion the child was being “fussy” while being fed in the high chair by her and that the father yelled at the child and forced food into the child’s mouth.[28] She described that the child spat the food out and that the father reacted by slamming his hand down onto the table and yelled “it’s fucking disgusting” in front of the child. She went on to depose that the father grabbed the child by his right arm, “dangled him in the air whilst he walked to the child’s bedroom” and that he “threw” the child into his bedroom. She then described that the father shut the door on the child, barely missing his fingers.[29]
[28] Ibid par 99.
[29] Ibid par 99-100.
The mother deposed that the father prevented her from going to the child and that the father said words to the effect of “…I’m fixing up the behaviour because you’ve spoiled him, you’ve made him weak, it’s like the rest of your fuckin [sic] family, you’re not allowed to open this door”.[30]
[30] Ibid par 102.
In cross-examination the mother maintained that the father had been physically aggressive with the child and in particular by pulling his arms up suddenly when he was very young. In cross-examination she suggested that she protected the child by keeping him separated from the father when the father was aggressive.
When asked to provide an explanation for why she requested the father to spend time with the child after separation in February 2014 despite the fact that she claimed that he was a risk to the child, she could not provide any explanation and failed to respond to the question.
The maternal grandmother deposed to the following behaviours of the father:
· During 2009/2010 the father would often take the car and disappear for the day during the heatwaves and she would go and pick up the mother and children so the mother could do the shopping and to take the child somewhere cool to play;
· In 2010 when the child needed his nappy changed but he wouldn’t stop playing, that the father grabbed the child by the arms and she told the father he didn’t have to do that. She deposed that the father ignored her and pinned the child’s arms back “and forced him to the lounge room floor so hard that the child’s head flung back and hit the floor. The child cried out in pain. I tried to comfort the child but [the father] grabbed him and left”.
The maternal grandmother maintained that her daughter told her when she was living with her that on many occasions the father would pick up the child by one arm and throw him into his bedroom and pull the door shut with the child’s fingers in the door. The maternal grandmother said that she believed what her daughter had said because she saw the way the father treated the child in front of her.
After the orders were made providing for the child to live with the father, the mother conceded that she made complaints to the Department about the child on 6 March 2017, 23 March 2017 and 19 April 2017, because she believed the child was at risk in the care of the father.

The child’s time with the father post-separation

In cross-examination by counsel for the mother, the father was prepared to accept that he found it difficult to spend time with the child immediately after separation and that the mother had made overtures to him to facilitate the child spending time with him. He agreed that he had work and study commitments in 2014 which provided him with little time to spend with the child. He maintained that immediately after separation he was “living in a car” and that later he had no vehicle and the mother did all of the “drop-offs and pickups”.
In re-examination he clarified that he had been living in his car for about one to two-and-a-half weeks and produced text messages between the parties from March and April 2014 which referred to his study and needing to get his work done in the context of requests by the mother for the child to spend time with him.[31] However he maintained that there was a different context to the arrangements for the child to spend time with him immediately after separation and that after the child began spending overnight time with him that the mother steadily reduced that time.
[31] Exhibit A and Exhibit B.

I do not propose to make orders for the mother to undergo treatment which might invite a contravention and further litigation which would not be in the best interests of the child. The mother has given evidence that she is already undergoing treatment and proposes to continue. In the absence of any diagnosis of her mental health, it is a matter for her to consider in consultation with her treating health professionals.

I certify that the preceding four hundred and ninety six (496) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 6 December 2018.

Associate:

Date: 6 December 2018

Annexure A

The father relied upon the following documents:

·    Amended Initiating Application filed 11 July 2017;
·    Notice of Risk filed on behalf of the father on 5 November 2015;
·    Affidavit of the father filed 1 December 2017;
·    Application in a Case filed 27 January 2017;
·    Affidavit of the father filed 27 January 2017;
·    Affidavit of Ms HH filed 28 June 2016;
·    Affidavit of Dr E filed 2 August 2016;
·    Exhibit ICL 1 – Report by Consultant Psychiatrist Dr E dated 22 January 2018;
·    Child Inclusive Conference Memorandum prepared by family consultant Dr F dated 20 January 2016;
·    Family Report prepared by family consultant Dr F dated 24 February 2016.

The mother relied upon the following documents:

·    Amended Response filed 30 November 2017;
·    Affidavit of the mother filed 30 November 2017;
·    Affidavit of Ms U Attard filed 30 November 2017;
·    Affidavit of Ms FF Attard filed 30 November 2017;
·    Affidavit of Dr K filed 24 November 2017 annexing psychiatric report of the mother dated 29 June 2017;
·    Affidavit of Dr K filed 24 November 2017 annexing psychiatric report of the mother dated 21 November 2017;
·    Exhibit 2 Supplementary Forensic Psychiatric Report of the mother by Dr K dated 23 January 2018;
·    Affidavit of Dr GG filed 24 August 2017;
·    Affidavit of Dr GG filed 15 January 2018.

The Independent Children’s Lawyer relied upon the following documents:

Affidavit of Dr E filed 2 August 2016;
Exhibit ICL 1 – Report by Consultant Psychiatrist Dr E dated 22 January 2018;
Family Report prepared by Dr F dated 24 February 2016.
Child Inclusive Conference Memorandum prepared by Dr F dated 20 January 2016;
Section 69ZW Report dated 24 February 2016;
Transcript of interim proceedings on 13 October 2016.

[2018] FamCA 1019

6 December 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness