Grivas and Kader & Ors
[2015] FamCA 1097
•10 December 2015
FAMILY COURT OF AUSTRALIA
| GRIVAS & KADER AND ORS | [2015] FamCA 1097 |
| FAMILY LAW – CHILDREN – Best interest of the child – With whom the child lives – With whom the child spends time – Parental responsibility – Where the Department of Family and Community Services holds parental responsibility, the child is in the primary care of the maternal grandmother and spends time with the father and mother – History of drug use and family violence between the parents – Where there is expert evidence of the mother’s untreated mental health issues and risks to the child in the mother’s care – Best interest considerations – Where the need to protect the child from harm is of great significance in the matter – Where orders made for the child to transition into the father’s care, for the father to hold parental responsibility after a period of time, the father to accept the ongoing supervision of the Department for a period of time – Where orders made for the mother to spend limited supervised time with the child. FAMILY LAW – COSTS - Child representative – Consideration of s 117 and factors in s 117(2A) – Financial circumstances of the parties – Where the independent children’s lawyer played a significant role in the proceedings – Mother and father each pay the independent children’s lawyer’s costs. FAMILY LAW – PRACTICE AND PROCEDURE – Single expert’s fees – Rules 1.12 and 15.47 – Department has agreed to pay one third – Not appropriate for the maternal grandmother to contribute – Father and mother overall each contribute one third of the expert’s fees. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 117 Family Law Rules 2004 (Cth) rr 1.12, 15.47 |
| Aldridge & Keaton [2009] FamCAFC 229 |
| APPLICANT: | Mr Grivas |
| 1st RESPONDENT: | Ms Kader |
2nd RESPONDENT: INTERVENER: | Mrs Kader Department of Family and Community Services |
| FILE NUMBER: | PAC | 811 | of | 2013 |
| DATE DELIVERED: | 10 December 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9, 10, 11 and 12 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fermanis |
| SOLICITOR FOR THE APPLICANT: | H C Stathis & Co Solicitors |
| COUNSEL FOR THE 1ST RESPONDENT: | Litigant in person |
| COUNSEL FOR THE 2ND RESPONDENT: COUNSEL FOR THE INTERVENER: | Litigant in person Ms Neville |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
Orders
That all previous parenting orders in relation to the child L born … 2011 (“the child”) be discharged.
That for a period of 3 months from the date of these orders, the Minister for Family and Community Services shall have sole parental responsibility for the child.
That at the expiration of a period of 3 months from the date of these orders the father shall have sole parental responsibility for the child.
That for the period during which the Minister for Family and Community Services holds parental responsibility for the child, the child shall live as directed by the Secretary for the Department of Family and Community Services or his delegate and such direction may include a direction that the child live with the father during such period.
That at the expiration of a period of 3 months from the date of these orders the child shall live with the father.
That for the first 9 months during which the father holds parental responsibility for the child the father shall accept the supervision of the Secretary or his delegate and shall comply with all reasonable directions given by the secretary or his delegate in relation to the safety, welfare and well-being of the child with such supervision to include inspection of the premises in which the child is living and sighting and interviewing the child.
That the child shall spend time with the maternal grandmother Mrs Kader as agreed between the father and maternal grandmother and failing agreement on the first weekend of each calendar month from 10.00 am Saturday until 5.00 pm Sunday.
That the child shall spend time with the mother as agreed between the father and mother with such agreement to be in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) The second Sunday of January, March, May, July, September, and November in each year for a period of not less than 2 hours on each occasion;
(b) Provided always that unless otherwise agreed between the mother and the father and until the child attains 13 years of age all time spent by the child with the mother shall be supervised by the maternal grandmother Mrs Kader or by the maternal aunt Ms N or by a person agreed between the mother and the father or a professional contact supervisor with the cost of any such supervision to be paid by the mother;
(c) Provided always that upon the child attaining 13 years of age the mother’s time with the child shall continue to be supervised unless otherwise agreed by the mother and father,
(d) Provided always that unless otherwise agreed between the mother and father all changeovers for the purposes of the child’s time with the mother shall occur at the home of the maternal grandmother.
That the mother shall not contact or approach the child except in terms of these orders or with the consent of the father in writing with such writing to include SMS or email communication.
That the mother shall comply with all reasonable directions given to her during periods of supervised time by the maternal grandmother Mrs Kader, the maternal aunt Ms N or any other agreed or appointed supervisor.
That the father is authorised by reason of this order to do all things necessary to enrol the child in school for the commencement of the 2016 school year at a school chosen by the father.
That the mother is authorised by reason of this order to obtain from the child’s school educational information including school reports and newsletters and is further authorised by reason of this order to obtain from the child’s health professionals medical, dental and other allied health information relating to the child as she may reasonably request.
That the father shall do all things necessary as the parent holding sole parental responsibility to inform the mother of any significant decision taken by him as to the education, medical, dental or other allied health treatment for the child within a reasonable period of making such decision.
That the father shall do all things necessary as the parent holding sole parental responsibility to facilitate the mother obtaining the information as provided for in Order 12 above.
Independent Children’s Lawyer’s Costs
That the father and mother each pay to the Independent Children’s Lawyer by way of costs $7,733 within three months from this date.
Single Expert’s Fees
That within one month from this date the Intervenor Department of Family and Community Services pay to the Independent Children’s Lawyer one third of the total fees paid or payable to the Single Expert Dr K and that from such payment the Independent Children’s Lawyer pay any fees outstanding to the Single Expert and pay the balance by way of reimbursement to the father any sum paid by him to date in excess of one third of the total fees paid or payable to the Single Expert Dr K.
That within three months from this date the mother pay to the Independent Children’s Lawyer one third of the total fees paid or payable to the Single Expert Dr K and that payment be paid by the Independent Children’s Lawyer to the father to reimburse to the father for the balance then owing of any sum paid by him to date in excess of one third of the total fees paid or payable to the Single Expert Dr K.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grivas & Kader and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 811 of 2013
| Mr Grivas |
Applicant
And
| Ms Kader and Mrs Kader |
Respondents
And
Department of Family and Community Services
Intervener
REASONS FOR JUDGMENT
Context
These parenting proceedings were commenced by the applicant father by application filed on 7 March 2013.
Initially the respondent mother was the only respondent to that application. Subsequently the Secretary, Department of Family and Community Services sought to intervene in the proceedings as did the maternal grandmother.
The subject child is L, born in 2011.
The applicant father in his Initiating Application sought orders that in summary provided for:
a)The mother and father to have equal shared parental responsibility for the child;
b)The child to live substantially in a shared care arrangement;
c)Various specific orders as to time on special days and other occasions; and
d)Various other specific issues orders relating to restraint from relocation, mutual exchange of contact information and information relating to the child’s health and well-being, a mutual restraint from causing the child to consult a psychiatrist, psychologist and/or counsellor without the written consent of the other parent, exchange of information in relation to educational documentation and the ability to request the other parent to undertake urinalysis testing.
Ultimately at trial the father sought orders providing:
a)That all previous parenting orders be discharged;
b)That until 26 January 2016 the Department have parental responsibility for the child and until that date the child live as directed by the Department;
c)That as and from 27 January 2016 the father have sole parental responsibility for the child and that the child live with him;
d)That until 27 April 2016 the father accept the supervision of the Department;
e)That the child spend time with the mother as agreed between the mother and father and failing agreement on not less than six occasions each year for a period of two hours in addition to other special days;
f)That in the absence of agreement otherwise between the mother and father the child’s time with the mother be supervised by the maternal grandmother or a person agreed upon by the mother and father and in default of agreement by a supervised contact organisation with the cost of supervision to be paid by the mother;
g)Otherwise the father sought other specific orders in relation to implementation of changeovers, the enrolment of the child in school for the 2016 academic year and the provision of information and documents relating to the child’s schooling and health to the mother.
The father has appropriate accommodation for the child. At trial he resided with his sister and her husband on their small rural property near Sydney. The father’s sister was supportive of the father’s application and acknowledged that should she have any concerns in relation to the child she would notify the Department. The child would have her own bedroom in an eight bedroom home. The property would provide an engaging and interesting lifestyle for the child. Other residents at the property were the father’s grandmother and his nephew C. The father’s nephew had been diagnosed as schizophrenic at the age of 21 and thereafter has been on medication. To the father’s observation he is compliant with medication and attends upon his doctor regularly each month. The father’s nephew is employed in the business on the property.
Should the father ultimately hold parental responsibility he would be prepared to communicate with the mother in writing in relation to the child’s progress in various aspects of her life and would facilitate the child having in addition to physical contact weekly telephone contact at least with the mother provided such calls were supervised by him. The father was open to the extended maternal family spending time with the child by agreement with him.
At trial the Department sought orders that substantially reflect those sought by the father save for the discrete issue as to the periods within which the Department would hold parental responsibility and maintain supervision over the child living with the father.
The maternal grandmother supported the position of the father and the Department but also sought specific orders in relation to the child spending time with her. Her proposal (Exh CC) seeks time with the child:
a)Each second weekend during school term from 12 noon Saturday until 6.00 pm Sunday with other members of the extended maternal family excluding the mother being able to have contact with the child during such time; and
b)For two periods of not less than three days twice a year during school holidays.
The independent children’s lawyer (‘ICL’) supported the proposals of the father and the Department save for discrete differences in relation to the time periods during which the Department would hold parental responsibility and thereafter later have a supervisory role in relation to the child’s time with the father. The ICL supported a discrete order that would provide for the maternal grandmother to have time with the child but sought that such time be one weekend a month at the times proposed by the maternal grandmother.
At trial the mother sought orders as set out in her trial affidavit; that the mother hold parental responsibility for the child but with a willingness to share same with the father and that the child live with the mother. During the trial the mother appeared to amend her proposals to provide that the child live in a shared care arrangement between her and the father with the child living with the mother each weekend and with the father during the week.
Ultimately at trial for reasons discussed below the primary issue for determination was what time the child shall spend with the mother and on what conditions having regard to the mother’s diagnosed mental health issues.
The relationship
The father is presently aged 42 and was born in southern Europe. He migrated to Australia with his family in 1974. The mother is presently aged 35.
It is common ground that the parties were cohabiting from August 2010 until October 2011. The parties commenced a relationship in about January 2010. In June 2010 the mother informed the father that she was pregnant and at that time the father proposed marriage.
In August 2010 the parties moved into the father’s property at Suburb E in Sydney.
The child was born on in 2011 and the parties separated nine months later in October 2011. The mother moved to live with her father at Suburb O in Sydney.
Both the mother and father used illicit drugs particularly ice during their relationship. They make allegations one against the other as to the extent of that use during their relationship. The father in oral evidence asserted that he had not used illicit drugs since September/October 2011.
The father since June 2014 has been subject to a requirement from the Department of Family and Community Services to undergo drug testing and there is no evidence of any positive test since that time.
Subsequent to separation the father spent regular time with the child on a couple of days per week until December 2011. In early December 2011 the mother and father argued over arrangements for the father to see the child. The father then uninvited attended at the mother’s residence. There was an incident shortly thereafter when the father broke into the residence as a consequence of which the father later that night was arrested and charged with “trespass” and property damage. In January 2012 those charges were dealt with by way of the father being placed on a good behaviour bond for a period of 12 months without conviction and being subjected to an apprehended domestic violence order.
In early 2012 the mother and the father attended upon a clinical psychologist for “couple’s therapy”. It is clear from those attendances (Exh I) that the parties made mutual allegations as to drug use. The mutual therapy appears to have ceased after an incident in April 2012.
The mother after the December 2011 incident it appears facilitated the father spending time with the child and such time continued without incident until April 2012. The father asserts that the mother agreed to him seeing the child. The father attended at the mother’s home at Suburb O but on arrival the mother refused to let the child spend time with him. It appears that an incident took place and the father was arrested and charged with contravening the apprehended domestic violence order and also charged with stalk/intimidate which was later withdrawn and dismissed. The father was granted bail on conditions including complying with the terms of the apprehended violence order and not to approach or contact the mother other than in joint counselling sessions.
On 29 August 2012 the mother and father agreed for the father to see the child. The mother facilitated a meeting with the father at O Railway Station and then following an argument during which the father grabbed her wrist the mother called the police. She suffered no injuries. The father was arrested.
The father was charged with common assault, contravene apprehended violence order and breach of bail. He was refused bail and remanded to a Correctional Facility. The father says that in order to be released from custody and notwithstanding he disputed the mother’s allegations as to his conduct he entered a plea of guilty to contravening the apprehended violence order. On 28 September 2012 the police withdrew the other charges and the father was ordered to enter into a good behaviour bond for a period of 12 months and to accept during that time the supervision of the Office of Probation and Parole and obey all reasonable directions for counselling, educational development, drug and alcohol rehabilitation and anger management.
Following his release from custody the father recommenced spending time with the child on 9 October 2012 by agreement with the mother and from then until the end of December 2012 the father spent time with the child mostly each alternate weekend at his sister’s property near Sydney.
The father spent time with the child on Boxing Day 2012 and thereafter the mother had refused to allow the child to spend time with him, alleging that the child was at risk in his care.
In January 2013 the father was contacted by the maternal grandmother and thereafter met with the maternal grandmother and the mother’s sister Ms N. The father was informed that the mother was unwell and needed help and was asked whether he would be in a position to have the child full-time.
On 7 March 2013 the father made application to the Court for parenting orders and on 7 June 2013 orders were made for the child to spend time with the father at a supervised contact centre pending interim hearing. The mother failed to attend for intake assessments as a consequence of which the child spent no time with the father.
On 29 July 2013 an order was made appointing Dr K, clinical and forensic psychiatrist, as the single expert in the proceedings for the purposes of the preparation of a family report. Pending further order the father’s time with the child was to be at times and on days offered by the supervised contact centre. The mother did not make the child available for time with the father at the contact centre.
On 31 January 2014 the single expert report from Dr K was released to the ICL only and then later that day on an ex parte basis on application by the ICL the Court made the following orders:
a)That the Department of Family and Community Services is requested to intervene in these proceedings;
b)That the report of Dr K be released to the Department of Family and Community Services;
c)That the parties and their legal representatives are not to be provided with a copy of the report or notice of the adjourned date;
d)The matter be adjourned to 4 February 2014.
It is common ground that the report of Dr K raises serious concerns in relation to the mother’s mental health and the risk that the mother poses to the child.
The Department subsequently removed the child from the mother’s care and the child was placed with the maternal grandmother and the Department made arrangements for the child to spend time with the father on a supervised basis on two days per week.
Thereafter on 23 July 2014 orders were made by consent that provided as follows:
a)That all previous parenting orders be discharged;
b)That the Department have parental responsibility for the child;
c)That the child live as directed by the Department and it was noted that the Department has directed the child to live with the maternal grandmother pending further order;
d)That the child spend time with the mother on a minimum of two occasions per week for a period of two hours supervised and at other times as agreed between the mother and the Department;
e)That the child until 15 October 2014 spend time with the father in the presence of the maternal grandmother on a minimum of two occasions per week for two hours and at other times as agreed between the father and the Department;
f)Thereafter until 7 January 2015 that the child spend time with the father in the presence of the maternal grandmother or the maternal aunt on a minimum of four occasions per fortnight being three occasions for two hours and on one Sunday per fortnight for five hours and at other times as agreed between the father and the Department; and
g)From 1 April 2015 the child spend time with the father in the presence of the maternal grandmother or the maternal aunt on four occasions per fortnight for two hours and on a Sunday from 10.00 am to 6.00 pm and at other times agreed between the father and the Department
The child at the time of trial was nearly five years of age and was attending at a child care centre four days per week. The father has made arrangements to enrol the child at school to commence in kindergarten in 2016 in anticipation of an order that the child live with him.
The father has not spoken to the mother since early Court proceedings in 2013. It is his view that they could not have a civil discussion in relation to the child. Whilst the child was in the mother’s care the mother provided the father with no information in relation to the child’s health or education. The father expresses significant concerns that the mother will do nothing to encourage and foster the child’s relationship with him should the child live with the mother.
The Department of Family and Community Services
The child has had an allocated case worker since 4 April 2013. Between 5 September 2012 and 11 February 2014 the Department received 13 risk of significant harm reports in relation to the child. Issues raised in the context of the reports included domestic violence between the parents, sexual harm to the child, risk of psychological harm to the child, risk of physical harm to the child and of drug abuse by each of the parents. Reports were also made expressing concerns about the mother’s mental health.
It appears that the Department did not actively engage in relation to the child until late January 2014 when the then caseworker consulted with Community Services Psychologist Ms B in relation to ways to engage the mother and identify appropriate intervention services in light of the mental health concerns and allegations the mother raised about sexual abuse. At that time it appears it was resolved to await receipt of the single expert report from Dr K.
The report from Dr K with an attached risk of significant harm report was received by the Department on 31 January 2014. The child was interviewed at her child care facility on 5 February 2014. On 10 February 2014 a decision was made by the Department that there were concerns for the child in the care of her mother and that the child’s safety welfare and well-being would be better secured if she was in the care of the maternal grandmother.
On 11 February 2014 in the context of the maternal grandmother expressing her reluctance to be able to care for the child the child was assumed into care of the Department under the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The maternal grandmother subsequently agreed for the child to be placed with her.
The Department holds child protection concerns in relation to the mother as follows:
a)The mother’s ongoing mental health issues and concerns raised in Dr K’s report;
b)The mother’s unwillingness to provide the Department with the contact details of her treating forensics psychiatrist; and
c)Concerns raised from the mother’s time spent with the child.
The Department’s position is that the risk to the child cannot be ameliorated because the mother does not accept that she has a problem with her mental health and has not sought treatment. The Department has been unable to engage with the mother to enable a working relationship that would provide effective supervision to manage the risk posed by the mother to the child.
On 27 March 2014 the Department received communication from the mother informing the Department that she obtained a referral to a psychologist Ms G from her general practitioner. The mother provided a report from Ms G dated 2 April 2014 to the Department. That report recommended that the mother have “a detailed clinical assessment of her mental health conducted by an independent psychiatrist or clinical psychologist to challenge the seriousness of the allegations that have been made about her mental health, drug use and history of domestic violence.”
Subsequently on 30 May 2014 the Department received information from the mother that she had an appointment with a “forensic psych”. The mother refused to inform the Department as to the identity of that person. In late June 2014 the mother informed the Department that she had seen her “forensic psych” but the mother again refused to provide any contact details of that practitioner.
In July 2014 the mother informed the Department that she had an appointment to see Dr R, psychiatrist.
In August 2014 the mother informed the Department that she had made arrangements to engage with a Dr W, psychiatrist. On 14 November 2014 Departmental officers spoke with Dr W who informed them that “he finds it difficult to work with the mother as she is looking for rediagnosis and not a therapeutic line which is what he aimed to do with her.”
Subsequently in January 2015 the mother informed the Department that she had not followed up with a psychologist or psychiatrist as it is “a waste of time”. Thereafter on 21 September 2015 the mother informed the Department that she had booked an independent psychiatric review with Dr M, psychiatrist.
The interactions between the mother and these various health professionals will be considered below.
The Department has formulated a transition plan with a view to the child moving to reside full time with the father, with the father living with the paternal aunt and uncle. The father’s engagement with the maternal grandmother in terms of supervision has been described by the maternal grandmother to the Department as “fabulous”. It is thus no surprise that the maternal grandmother supports that position of the Department and the father.
The mother’s contact with the Department since the Department has assumed the care of the child has been ongoing and relentless. Particulars of the nature and extent of the mother’s contact are set out in the affidavit of the caseworker filed on 23 October 2015. A consideration of the nature and context of that contact with the Department of itself raises significant concerns as to the mother’s mental health and the fact that she has little reflective capacity to focus on the needs of the child.
The caseworker’s oral evidence
In oral evidence, the caseworker advised that the Department had no concerns for the child in relation to any drug use by the father. Further the Department had no concerns for the child in relation to the mother’s allegations of the child being sexually abused.
The father was reported to be compliant with the caseworker’s directions in relation to the child.
The Department further held no fears or concerns in relation to the presence of the nephew C in the father’s household.
However as to the child spending unsupervised time with the mother the Department held significant concerns in relation to the mother’s untreated mental health issues, the volume and content of the mother’s email communications with the Department and the matters arising from Dr K’s report. It was the Department’s view that the child’s time with the mother should be supervised until such time as the mother received treatment which resulted in good progress through engaged therapeutic intervention.
After relinquishing parental responsibility to the father after a period of three months the Department’s proposal was to maintain a supervisory role in relation to the child for a further nine months as a consequence of the pattern of the father’s domestic violence and historic drug use.
The Department would most probably seek a power to request the father to undertake from time to time urinalysis testing for illicit drugs and such a proposal would seem most appropriate. The Department would also undertake regular visits to the father’s home having already met the father’s sister and undertaken an assessment of her home and in that regard there were no issues for the Department.
The caseworker spoke positively of the relationship between the father and the maternal grandmother observing that “they work well together in the best interests of the child”.
The caseworker was of the view that the proposal for the mother’s time with the child of not less than six times per year seemed inadequate and in the event that the mother’s treatment was progressing well that time could well be expanded by agreement.
The mother is employed full time as a financial administration officer.
At the time of trial the mother was seeing the child on two occasions per week for two hours supervised by the maternal grandmother when she could manage the mother’s behaviour and otherwise under supervision by a paid supervisor. The maternal grandmother at times struggled with the mother’s behaviour during periods of supervised time and on several occasions had asked the Department to provide an alternate supervisor. The maternal grandmother conceded that any supervised overnight time for the mother with the child would be difficult for her. The caseworker acknowledged that the mother’s sister Ms N would also be an appropriate supervisor provided that the mother was not left alone with the child.
The mother’s trial affidavit filed on 9 November 2015 revealed the significant difficulties confronting a self-represented litigant particularly where that litigant has significant mental health issues. The affidavit comprises substantially submissions and meanderings. Importantly the mother’s affidavit reveals her involvement in the “psychic” culture, describing herself as a psychic and being “indigo” and the child being “gifted” and being able to see “aura colours”. The mother asserts that she has telepathic powers and that she is being educated and guided by “our industry masters” and is known for her level of accuracy and detail.
The mother expresses the view that Dr K should withdraw his report completely and that she feels “fucked over by everyone”.
The maternal grandmother expresses concern as to the mother’s obsession with her skills and abilities in the psychic area, describing the mother as “very ambitious” with the mother’s engagement influencing some of her parenting decision-making. The maternal grandmother on reflecting on the mother’s past behaviour makes observations as to the mother appearing to “lose track of time”, being “out of touch”, being “out of focus” and remaining in a “freezing statue position” for no observable reason. The maternal grandmother’s concerns were also as to mother’s verbal aggression.
These observations were historically a daily concern for the maternal grandmother but less so now as she has less contact with the mother.
The maternal grandmother in oral evidence rejected any suggestion that the child had been sexually abused by the father. The maternal grandmother expressed that reservation to the X Hospital (Exh O) when the mother presented the child there for examination. The maternal grandmother expressed in some detail her concerns in relation to the mother’s mental health including physical manifestations of her illness to X Hospital on 5 April 2013 as did the maternal grandfather (see Exh O). The expressed concerns of the maternal family are significant and concerning as to the mother’s mental health circumstances.
The maternal grandmother was clearly willing to remain engaged in the child’s life notwithstanding that ultimately the child may reside full time in the father’s household. The maternal grandmother clearly knew her obligations as a supervisor and circumstances in which she would be at liberty to terminate the mother’s time if necessary.
The K Report
The single expert Dr K, Child, Adolescent & Family Psychiatrist, provided a report dated 24 January 2014.
As to the father, Dr K concluded:
203. I think it likely that the father has a stimulant use disorder dating back at least to 2010, of mild to moderate severity, but currently in sustained complete remission. In the old DSM IV language, the father has a diagnosis of past stimulant abuse, but not of stimulant dependence, suggesting a pattern of problematic use that is less likely than in the mother’s case to reinstate itself to problematic levels, particularly if the father stays away from social or recreational contexts where use is normalised.
…
…it is my impression that the father is now well past that early immature possessive behaviour, and is now focussed on the needs of the child and his desire to restore and maintain his relationship with the child. At the interviews with me, the father showed sensitivity to the fact that the child might not recognise him and might be hesitant to go to him, and was thoughtful about how he might manage that...
228. The father appears capable of providing for the child’s basic needs for stability, food, shelter and protection from harm. I suspect that he has some vulnerability to immature relational behaviour with a new partner or with friends, and to amphetamine use. The father’s capacity could be supported and augmented, and this vulnerability addressed, by the father providing for the child in the context of his continuing to live on the paternal aunt’s property, or at a minimum the paternal aunt having an agreed ongoing role in supporting the father and his parenting of the child.
229. The father appears capable of meeting the child’s developmental, emotional and intellectual needs adequately. This is particularly the case in the context of the support of the paternal aunt, and of a constructive relationship with the maternal aunt and maternal grandmother even if the same cannot be achieved with the mother.
His report is analytical and considered. Throughout the report he expresses concerns as to the mother’s mental health:
23. In marked contrast to the mother’s overall poise and control, on recurrent occasions during the interview [about 10 occasions during the 2 hour interview time], the mother suddenly stopped mid-conversation, and appeared to be distracted and distressed by a non-apparent stimulus. She winced and pulled her head to the side as if shouted at or spoken to harshly. She moved in the chair and tensed and pulled inwards her legs and abdominal muscles, as if experiencing pain or intrusion in her lower back, abdominal or genital region. She was not able to continue a sentence or train of thought.
24. In those moments, I observed the mother to be struggling to maintain composure and eye contact.
25. After about an hour of interview, after one such intrusion, the mother stood up and said, “I’ve gotta go to the toilet”, and hurriedly took the child with her out of my room. I waiting (sic) 10 minutes, then went down the corridor towards the toilets. I found the mother standing in the kitchenette opposite the toilets, with the child beside her. The mother was standing upright, very still and tense/ rigid in posture, and with a serious and strained face.
26. When I asked the mother about these disruptions, she minimised or deflected my questions. She said “I’m alright”, or “no, I’m good”, then on another occasion “there’s too much interference”. She said, “I needed to go to the toilet”, and explained that her menstruation had ceased in January 2013 and she was having pain in the lower abdomen, and that this was being investigated.
27. The mother’s speech was quite pressured. That is, she spoke rapidly and if not interrupted, she tended to continue without prompting to further elaborations, or to switch topics and continue to speak.
28. Associated with her pressure of speech, at times the mother became rather elevated and expansive in affect (expressed mood). This occurred particularly when the mother was discussing her current occupational project and goals in that regard.
29. The mother showed some loosening of associations in her thinking, and tangentially, that is she would move from topic to topic, not always with a clear logical or contextual link, with some disruption of her capacity to communicate.
30. When challenged about her pressure of speech and loosening of associations, the mother said that she can have a “lost train of thought”, especially when discussing important things. She said, “my mind travels so fast. I’ll be talking about 1 thing but thinking of 3… this can relate to this can relate to this”.
31. The mother did not present as depressed.
32. The mother’s mental state and its implications for diagnosis and parenting capacity are further discussed in the “matters to consider” section of the report below.
The report deals with an examination of the mental state of the mother. It is a detailed examination of the background and issues. It considers in a forensic sense much of the evidence before the court and in the context of this matter where the recommendations are so significant it is appropriate to repeat it in full:
Mother’s mental state:
103. In my view, the mother is experiencing significant mental illness, which is creating distress for her, and disrupting her function as a person and as a parent. The illness is also disrupting her judgement and insight, such that she to date is applying her energies to avoiding detection and treatment of her difficulties, rather than to gaining appropriate assistance and treatment.
104. My clinical observations and review of the documents leads me to the conclusion that the mother is experiencing a psychotic disorder, most likely DSM V schizophrenia. In terms of the DSM V criteria, the mother clearly is experiencing Delusions and Hallucinations, the two items required for diagnosis, but also is observed to have some disorganisation of speech and behaviour.
105. The mother has bizarre persecutory delusions, probably about a range of matters, but centring over the past two years on the father and the child. Delusions are fixed beliefs that arise from implausible assumptions and are not amenable to change in light of conflicting evidence. DSM V classes a delusions as “bizarre” if they are “clearly implausible and not understandable to same-culture peers and do not derive from ordinary life experiences”. In my view, the mother’s belief accords with description of “bizarre”.
106. The evidence suggests that the mother has expressed beliefs that she is able to communicate telepathically with others (for example reported by maternal grandmother to CS worker on 9th April 2013, and the maternal grandfather to CS workers in April 2013), that the father intrudes upon her own presence in a spiritual/ non-physical way, and that the father can sexually interfere with the mother and child by spiritual means without his physical presence (as expressed in the mother’s handwritten diary notes dated “1/1/12” and “10/3/13” in the CS file, attached to this report). The maternal grandfather reported to CS in April 2013 that he would hear the mother crying at night “please stop”, and “please don’t do it”. The mother expressed to me a belief that she was experiencing external “interference” during the interview with me, and reacted acutely as if such interference was occurring.
107. The mother’s beliefs about intrusion from others are not limited to the father. I note the events of 29th December 2012 reported in the affidavits of the father, paternal aunt, and paternal aunt’s husband, when the mother called the father at night complaining that the paternal aunt’s sons were “bothering” her “spiritually”. The maternal grandmother reported to CS on 9th April 2013 that the mother had said to her in conversation “don’t hurt me mum”, whilst holding her stomach.
108. The mother confirmed with me that she had reported to the police that the father had assaulted a relative on the basis of spiritually derived knowledge that this had occurred.
109. The mother believes that she is able to send as well as receive information in the spiritual realm. Her note of “1/1/12” states “I begged [the father] in the zone to stop and he knowingly didn’t want to”.
110. Associated with and perpetuating her delusional beliefs, the mother is experiencing hallucinations. Hallucinations are perception-like experiences that occur without an external stimulus.
111. The mother is experiencing auditory hallucinations. During the interview with me, she reacted on a number of occasions with a facial expression of wincing and pulling away and an associated loss of continuity in conversation that in my clinical experience is consistent with her being interrupted by intrusive auditory hallucinatory processes. The CS file includes reports from the maternal grandmother and maternal grandfather of their observing similar sudden disruptions during their conversations with the mother. On 9th April 2013 the maternal grandmother is said to have described the mother “suddenly listening”, then saying “orr, [L’s] just woken up” [the child was in day care]. On 9th July 2013, the maternal aunt Ms N told CS that the mother will stop mid-conversation and say “stop it, fuck off”.
112. The mother has experienced and probably is still experiencing tactile hallucinations. During the interview with me, she on a number of occasions tensed and shifted her body in a manner suggesting marked discomfort in lower back, abdominal or genital regions. The note of “10/1/13” states “Playing games vibrating pussy of mine and [L’s] since 9pm, 9pm to 229am, I feel my vagina move up and down non-voluntarily, always stinging”, and “I could feel something inside of my vagina going up and down… I was screaming for it to stop”. The maternal aunt Ms N told CS on 9th July 2013 that the mother in the past had believed that there were worms under her skin, a delusion commonly associated with tactile hallucinations (and with hallucinations in the context of amphetamine use).
113. The mother has experienced olfactory hallucinations. The note dated “1/1/12” records (after an episode of what the mother believed to be paternal spiritual sexual intrusion on the child), “then I smelt male cum”.
114. The mother’s facial expression, bodily shifts, need to leave my room, and frightened expression when I went to check on her and found her standing still in a dark room, are all consistent with the mother experiencing hallucinations of a distressing and disrupting intensity.
115. This predominance of auditory hallucinations is common in schizophrenia. The presence of tactile and olfactory hallucinations is consistent with schizophrenia, but makes an organic (medical) cause of the paranoid illness more likely, such as ongoing amphetamine use or a brain disease, and adds weight to the recommendation of a thorough neurological review including an MRI scan of her brain.
116. Ms [F] from the child care centre told CS in 2013, and me by telephone that she had observed the mother stopping and “staring into space” just outside the centre, for about 10 minutes, and that another staff member had observed the same on a previous occasion. Such a presentation is consistent with the mother experiencing hallucinations and/or engagement with delusional processes. The maternal grandmother described this to CS on 5th April 2013 as “freezing”
117. The mother projects her own hallucinatory experiences and delusions onto the child, and interprets the child’s behaviour as evidence that the child too is experiencing spiritual and sexual intrusion, including auditory and tactile components. In this way, the child is incorporated further into the mother’s delusional thinking.
118. When I saw the mother with the child, the child on one occasion had a shift from playfulness to coy withdrawal that in my judgement was not out of the range of typical child behaviour. The mother pointed to this shift as evidence, and said, “that happens… all of a sudden her mood changes…”. The child then dropped a hairband that she had been holding, and my eyes followed the band to the floor. The mother appeared to misinterpret the reflex action of my eyes as a shared awareness of the delusional significance of the event, and said in affirming tone, “that wouldn’t’ have happened unless instructed”.
119. The mother has interpreted the child’s crying, or holding her nappy, or not wanting a nappy change as evidence that the child is being spiritually sexually assaulted. The note of “1/1/12” suggests that she has acted on these delusions to engage in the spiritual realm to try to protect the child, and has acted physically, on this occasion to pick up the child and to hold her legs together straight.
120. The mother’s delusional interpretations of the child’s behaviour can lead her at times to be intrusive upon the child. The mother told the CS worker on 5th April 2013 that the child “eats phallic food in a really sexual way”. On the same day, [Ms D] from Brighter Futures expressed a concern that the mother can be hypervigilant and critical of the child, and gave the example that the mother was “constantly telling her not do things”, for example not to put her fingers in her mouth when eating. This intrusion was out of keeping with the overall gentle engagement with the child observed by me, and was likely secondary to some delusional beliefs surrounding for example sexualised behaviour or risk of infection.
121. The mother’s concern about spiritual sexual assault of the child may not be limited to the father as perpetrator. The note of “10/1/13” lists the father [Mr Y], and [Mr Z] as pedophiles, “playing games, vibrating pussy of mine and [L’s]”. The maternal aunt Ms N reported to CS on 9th July 2013 that the mother had believed in the past that “[Mr Z] gives her orgasm’s telepathically”.
122. It is my impression that when the mother has reported that the child is gripping her nappy, crying and complaining of pain, the mother is not interpreting these events as evidence of psychological trauma from past assault (as is more typical and as the recording professionals will have assumed), but the mother believes herself to be witnessing a current assault. This will escalate the level of distress, hypervigilance and emotional reactivity in the mother. Whilst others will conclude that the child is now safe because she does not see the father, the mother experiences no such reassurance.
123. In my experience it is not uncommon for persons experiencing delusional intrusion accompanied by hallucinations to seek to record the event, expecting its significance and intensity to be apparent to the viewer of the recording, but for the viewer not to see much happening at all.
124. It is not surprising in this context that the mother is (according to the CS worker’s recent telephone call to myself) still escalating in her demands for police and legal protection from paternal intrusion. The mother told me that the father was threatening and stalking her “last month”, and that at times her ‘phone had disappeared, or her passwords had been compromised, for example for her internet banking. Whilst I cannot discount the possibility that the father is still engaging in such behaviour, I think it likely that the mother’s concerns are delusional.
125. In addition to the symptoms of delusions and hallucinations, the mother shows some disorganisation of thought and behaviour. I observed that her speech was at times pressured, that is she spoke fast and with an apparent need to continue speaking, even when I did not prompt or encourage the same. Her replies at times were tangential or with loosening of the associations between ideas, such that it could be difficult to follow the logic of her discourse. I note that the police when they attended at the maternal grandfather’s home on 15th January 2013 noted the mother “repeating herself over and over”, “hysterical”, and not calming down, and judged that she “exhibited paranoia, manic behaviour, and irrationality in police presence”. Child care centre staff told CS on 15th May 2013 that the mother “can talk very fast and panic”. The maternal grandmother told CS staff on 9th April 2013 that the mother was “not able to focus or carry on a conversation”.
126. Whilst the mother presented very well in terms of a pleasant, engaging and conversational demeanour, and apparent reasonable content of her speech, there were subtle but significant disruptions to her thinking that disrupted effective communication. For example, her tangential replies could lead her to slip off the topic and need bringing back. Sometimes she became stuck listing overinclusive concrete responses, for example when I asked her about her work history, she started going into detail about the names of past employers.
127. The above findings are common in psychotic illness, and lead to a subtle but cumulatively significant disruption of function. I note that the maternal grandfather told CS on 12th April 2013 that the mother, who had been living in his home for the previous 15 months, had lost function and concentration, and this had disrupted her employment.
128. The combination of increased mental energy, hypervigilance, grandiosity, impaired judgement and disrupted mental functioning can lead persons with psychotic illnesses to put great energy into schemes that can partially or fully get off the ground, but then fail, leading to a period of distress and disorganisation before they become preoccupied with a new issue or scheme. I am concerned that the mother’s current project of renovating her home/ shopfront, setting up an online business and engaging with the local church and community may be such a scheme, and that in her current mental state and without the presence of in-home support from relatives, the mother is likely to experience failure of such ventures either in the business or interpersonal arenas, with subsequent financial, residential and social instability for herself and the child.
129. The mother’s delusions, hallucinations and disordered thinking/ behaviour can disrupt judgement in interpersonal settings and lead to episodes of odd or intrusive behaviour. I note that on the ward in [X] Hospital (see Exh O) the mother was observed to have sudden shifts in mood in response to the actions of others, for example when another child urinated on the floor. The CS notes on 9th April 2013 note that [a doctor], from the Child Protection Unit at [the] Childrens Hospital, had observed the mother “invade another mother’s space” in a similar way.
130. I am concerned that the mother’s mental illness is disrupting her judgement and insight, such that she to date is applying her energies to avoiding detection and treatment of her difficulties, rather than to gaining appropriate assistance and treatment.
131. If persons with a psychotic disorder have good insight, they will realise the irrational nature and disruptive effects of their symptoms, and will seek treatment. If they have no insight, they will openly express and display symptoms, which at least allows professional and other persons around them to identify their condition.
132. The mother displays problematic partial insight.
133. The mother appears to have very poor insight into the delusional nature of her belief systems, and is holding firmly to a belief that her hallucinations represent a spiritual reality, and that the father’s and other intrusions on her person and on the child’s person are occurring in that spiritual realm. The mother said to me, “I read. I’m educated. I know what’s a condition, and what’s not a condition”.
134. But, the mother has good insight into how her beliefs might be perceived, and into what sort of comment or behaviour might lead others to become concerned about her mental health. After the mother had experienced several episodes of what she had termed “interference” during the interview with me, I asked about these experiences, then when the mother sought to brush them off as just pain or stress I challenged this. The mother became irritable and defensive in tone and posture, and said, “I know what you’re doing… wanting to say ‘[Ms Kader’s] got permanent mental instability and can’t raise a child’”. The mother accurately appraised that I would be concerned about such symptoms, but inaccurately judged that I would view her condition as incompatible with raising a child.
135. Because of her insight into societal perception of her symptoms and her desire to defend herself against the threat of diagnosis, the mother has placed a great deal of energy into presenting well to outsiders, particularly to CS and to health and mental health professionals. The mother denied hallucinations or telepathic/ spiritual experiences to the assessing professionals at [X] Hospital in May 2013. She did the same to me, then when I challenged her with the incident where she had rung the father at night, and the incident where she had accused the father of assaulting a relative, the mother appeared to change tack, and agreed that these were spiritual experiences, but said that her mother was similar, and this was a cultural thing in their family. When directly challenged with the pages of her own notes, the mother told mental health and CS staff that these were just records of vivid dreams.
136. A pattern is observed where those who spend significant day to day time with the mother such as the maternal grandmother, grandfather and aunt, the CS caseworker, the child care staff, and the ward staff at [X] Hospital are concerned about her mental health, but those who see her for set-piece appointments such as occurred with Dr [H], and with the nurse, psychiatric registrar then psychiatric consultant in May 2013, conclude that there is no clear evidence of mental illness.
137. Similarly, overall the mother presented a very reasoned, reasonable and apparently functional self to me at interview. The fact that the mother was not able to suppress her responses to psychotic symptoms during the interview may have been due to an exacerbation or progression of her illness since the assessments of May 2013, or due to the particular stresses and longer duration of the court-related interview.
138. The mother has actively sought to avoid professional scrutiny and accountability, and mental health treatment. The mother admitted the child to [X] Hospital under an assumed name, and was very reluctant to give an address. Although the mental health assessment was inconclusive, the notes document a plan for assertive community follow up, but the mother appears not to have engaged with the same.
139. The mother also has insight into the knowledge of her illness and degree of concern held by her relatives. Because of this, the mother has been willing to cut herself off from the support of and connection with relatives, in order to prevent detection of her difficulties. When on 6th April the maternal grandmother rang the hospital ward, the mother insisted on no visitors. On the day of interviews with myself, the mother agreed reluctantly to the my talking to the maternal grandmother, then allowed it to transpire that the maternal grandmother departed and went to the city, and was not contactable.
140. The lack of assertiveness of the mother’s relatives in seeking psychiatric treatment for her appears to a fear that the mother will cut them out of her life if they do so, as expressed in the messages from the aunt [Ms N] to the father attached to his affidavit. The mother’s coercive demand for collusion with her denial and avoidance is thus disrupting the effectiveness of the maternal relatives in assisting the mother.
141. I think it likely that the mother is aided in her avoidance of detection and treatment by above average premorbid intelligence and verbal skills. The mother presented as articulate and clever. She told me that she was an A-student in primary school, and placed in accelerated classes in high school. Although the mother’s illness has decayed the mother’s capacity to present herself a little, she is still above average in that regard.
142. In addition, the mother has a form of schizophrenia which in DSM IV was termed the subtype “paranoid”, where delusions and hallucinations are prominent, but there is relative preservation of personality and less disorganisation of thought and emotion. This makes the mother less overtly “abnormal”, even though she is struggling with markedly bizarre and abnormal beliefs.
143. The maternal grandmother told CS on 9th April 2013 that the mother’s psychotic symptoms had come on “18 months ago” [that is, late 2011] and that the mother was “not like this before”.
144. I think it likely that the mother’s overt symptoms of schizophrenia did have their onset in late 2011/ early 2012, and that these symptoms built up to the point where the mother made her allegations of sexual abuse of the child, and ceased the father’s time with the child, in late 2012. But, the father’s description of the mother spending long periods of time in front of the computer during their relationship, and lacking function and engagement with the world at that time, may have represented prodromal symptoms of schizophrenia. Paradoxically, amphetamine use may have (whilst it worsened inner distress and psychotic thinking) contained the mother’s verbal expression of and organised help-seeking regarding her delusional beliefs. So, ceasing substance use may have led to increased function and clarity of thinking and self-expression, thus making the psychotic symptoms more overt and action-initiating in the mother.
145. It is possible that the mother has a psychotic disorder due to a medical condition. These are uncommon, but may be treatable, and would be detected by a thorough neurological examination, some blood tests and an MRI of the brain, which would be an advisable investigation process.
146. It is possible but I feel unlikely that the mother has an amphetamine-induced psychotic disorder. This would imply ongoing regular amphetamine use, maintaining the symptoms, which the family and myself feel has not been the case over the last 18 months. This would have a worse prognosis because it would imply a more severe associated substance dependence, but a better prognosis for resolution of psychotic symptoms if the mother ceased amphetamine use.
147. It is possible but I feel highly unlikely that persons including the mother’s family and the father have been colluding to fabricate or exaggerate the mother’s symptoms, for their own gain, or that they have been mistaken. I think this unlikely, as the family appear to have been supportive of the mother and measured in their attempts to seek help for her. The mother has not denied that she wrote the notes dated “1/1/12” and “10/1/13”. In my experience, it is common for even a patient with quite a severe psychotic illness to present quite well, and for most of the evidence for diagnosis to arise from history provided by concerned family or associates.
148. It is possible but I think unlikely that the mother’s presentation is a trauma reaction to severe family violence perpetrated by the father, on the background of the mother’s experience of sexual assault in adolescence. This would not be a valid sole explanation of the mother’s presentation, because her symptoms are typical of schizophrenia not of trauma reaction, but if the court found that the mother’s account of severe family violence perpetrated by the father is accurate, then this will have been a precipitating and activating factor in the mother’s psychotic decompensation. I think it likely that the mother’s developing psychotic illness led her to an amplified and distorted perspective of the father’s malevolence and intrusion upon her life.
149. I think it likely that the mother has a longstanding stimulant use disorder dating back to late adolescence, of moderate to severe severity, but currently in sustained complete remission. In the old DSM IV language, the mother has stimulant dependence, suggesting a pattern of problematic use likely to reinstate itself over time if she returns to any use, with the most effective treatment being abstinence from the drug.
150. The mother told me that from age 19 to about 22, she had used MDMA occasionally on weekends. She used occasional cocaine or a period when she was 23, then again for 6 or 8 months at age 26. The father introduced her to amphetamines. She used “Ice” amphetamines a few times per week when with the father, then stopped when pregnant with the child.
151. The father told me that when he met the mother she was using amphetamines regularly. She would use them every day, and would stay up on the computer because of their effects. He would give her money for bills, and she would spend it on amphetamines. She stopped or cut down use when pregnant and breastfeeding, but then when she stopped breastfeeding when the child was 3 months old, suddenly lost the weight that she had put on, and was back sitting up at night on the computer, and the bills weren’t being paid. So, the father deduced that the mother was using amphetamines regularly again.
152. I think it likely that the father’s version of the mother’s history and pattern of use is the more accurate. I note that the mother has a conviction for “possess prohibited drug” in 2006 (age 25). The police records contained in the CS notes note that in 2001 (aged 20) the mother was reported missing and at that time was noted by police to be a “heavy cocaine user”, owing money related to her habit. The conviction in 2006 resulted from the mother having a “bong” and Ice amphetamines found in her possession.
153. The maternal grandmother told CS on 9th April 2013 that the mother had been on drugs since age 17, with her drug of choice being Ice. The maternal aunt [Ms N] told CS on 9th July 2013 that the mother was on “drugs: cocaine/ ecstacy/ Ice” over time.
154. Both the maternal grandmother and maternal aunt told CS in April 2013 that they did not think that the mother was currently or had been recently using drugs. The maternal aunt commented that the mother had no scabs on her skin and had not been complaining of worms under her skin. The maternal grandmother commented that the mother’s current dysfunction is “not the same as when she’s using drugs”… the mother is carrying on her routines of life, which she was not doing when using drugs. The maternal grandmother felt that the mother had not been using drugs for over 12 months at that time, that is since at least mid-2012. I note that the mother has returned at least one “clean” urine specimen. The child care staff and Dr [H] had not observed evidence of current substance misuse.
155. It would appear that the mother is currently not using stimulant drugs, and her role in the child’s life may have been a positive motivator in that regard. But, the mother’s denial and minimising of her own past use, and her externalising of responsibility for that use onto the father, suggest a vulnerability to relapse, because strong and enduring recovery is usually associated with an attitude of honest and responsible accountability for one’s past substance misuse.
156. I note that after the interviews on 22nd November 2013, I requested that both parents undergo a Urine Drug Screen. I have not seen the results of the same.
157. The mother told me that she had never used cannabis regularly.
158. The mother told me that she now will drink one glass of alcohol every second night, about one bottle per fortnight. Her period of heaviest drinking was from age 18 to about 24. She would have 10 to 12 drinks on one weekend night per week. She did not have alcohol-related problems. At age 24, she moved back home with her parents, and toned down her drinking.
159. The mother told me that she lost her drivers licence in her early 20’s for a low range PCA, but “kept on driving”, a behaviour that she explained in terms of the foolishness of youth, and quite quickly built up a number of driving disqualified offences that led her to have her licence suspended for 8 years, until 4 months prior to interviews.
160. The mother presented with negative moods associated with the stresses of her psychotic disorder and current life challenges, but it was not my view that she had a depressive or anxiety disorder.
161. I note that the maternal grandmother and aunt both reported to CS that the mother had experienced a sexual assault in her adolescence. Childhood sexual assault does increase the risk of subsequent development of substance misuse disorder and psychotic disorder. It may be appropriate for the mother to talk through such issues in counselling in the future, but the initial priority in treatment would be to manage the psychotic disorder and to strengthen the mother’s abstinence and recovery from stimulant misuse.
162. In my view, the mother does not demonstrate significant personality dysfunction. I do not observe evidence of a personality disorder. Her presentation is of a woman with immature but reasonable personal and interpersonal capacity, disrupted in her 20’s by substance misuse and currently by her psychotic illness.
163. I agree with Dr [H] that the mother shows some personality immaturity, with poor interpersonal problem solving and conflict resolution skills. Such immaturity is common in persons with ongoing substance misuse disorders, due to the cumulative disruptive influence of the substance misuse.
164. Most persons with ongoing substance misuse disorders develop some antisocial personality traits, which are adaptive to their lifestyle of drug use. The mother overall does not have an antisocial personality style, but she does appear to have a capacity for strategic and plausible mistruth. For example, her account of being introduced to drug use by the father, the degree of paternal aggression, and the father having been to prison several times including for sexually abusing another child [the latter from CS notes dated 2nd January 2013] may be delusional, but I feel more likely represent a practiced skill of strategic deception.
165. The mother’s father is of [European] origin, and mother [Nordic]. They met overseas, and the mother is a citizen of the US and Australia.
166. The mother grew up in [Suburb P] until age 16, then in [Suburb O]. Her father worked in his own business selling office supplies, and her mother is an artist, who ran classes out of the back of their house. She grew up the eldest of 2 girls, with a sister 3 years younger.
167. The mother recalled growing up in a warm, loving household. She and her sister would be at the local [sports venue] after school, and would spend time with the paternal grandfather’s mother, sister, and the sister’s children (her cousins). The mother recalled riding bikes in Centennial Park, having family barbeques.
168. The family was very sporty, with the maternal grandfather having played [a team sport]. The mother engaged in [her chosen sport] from ages 6 to 16, was Number 1 in Australia, and almost made an Olympic team. The maternal aunt played [an individual sport] and reached professional level. The mother recalled being instilled with determination, drive and competitiveness, but viewed this as positive, and not harmful to her as she grew up. She stopped [her chosen sport] prior to her last year of school.
169. The mother was baptized in the Lutheran church through the paternal family tradition. She attended Russian church during her adolescence, with her [sports] coach, who was Russian.
170. The mother was well-behaved at primary school. She had friends. She was not shy. She did well academically. She attended a girls’ private school in Sydney, was accelerated in her learning and classes in early high school, but did not show her full potential in terms of her HSC mark. She did not engage in delinquent behavior (sic).
171. In terms of mental health treatment, the mother saw a sports psychologist in her mid-adolescence for “mental training” for competitions. This was useful. She saw a counselor (sic) alone after she ended the relationship with … in her mid-20’s, then in recent times Dr [H].
172. The mother has never taken psychotropic medication. She was offered antidepressants by a GP in recent times, because she was “crying a fair bit”.
173. The mother has not been admitted to psychiatric hospital.
174. The mother has maintained a strong attitude of commitment to the child and to the responsibilities of parenthood. Her commitment to the child in action was disrupted by her substance use during the child’s first year of life. After separation and having stopped substance misuse, the mother has been committed to the child, and in particular her protection from perceived harm.
175. I agree with the statements of the maternal grandmother and maternal aunt to CS that the mother has very strong day-to-day parenting skills, the maternal grandmother describing these as “150%”. It is notable that despite significant concern for the mother’s mental state, all observers including maternal relatives, the father, the childcare workers, the CS workers, Dr [H] and the hospital staff have observed the mother to care for the child adequately or well, and the child to appear settled in the mother’s care.
176. My observations would concur with the above. Despite the significant stress of the medicolegal interview, including facilitating my interview with child and father, and despite the mother appearing to have active psychotic experiences in the interview, the mother maintained supra-normal connection with and care of the child during the interview with me.
177. Even when the mother was struggling with her symptoms, such as when she left my office precipitously to stand in the dark, she appeared mindful of the child’s needs, and took on a light and purposeful demeanour, gave a clear instruction to the child, and sought to minimize the child’s unease.
178. The child had vomited on her clothes in the car on the way to see me, but the mother had cleaned her up and helped her to gather herself.
179. The mother had with her a bag for the child that included a mix of toys and belongings that the child appeared familiar with and used well during the long interview time.
180. When she came into the interview room, the mother attended to the child’s emotional and pragmatic needs, and set her up to draw. The child was able to play in a self-contained and non-vigilant way that suggested a trust in the mother, but also sought out proximity to the mother if stressed (for example when she first met me) or sought out maternal acknowledgement and attention from time to time, for example to look at her picture. The mother was attuned to and responded to these needs.
181. The child was very well behaved, but from time to time when her play became a little uncontained, the mother would direct the child appropriately, and the child would settle.
182. When the mother spoke of the child, the mother expressed understanding of the child’s developmental stage and developmental, intellectual and emotional needs. The mother showed better-than-average skills in the guidance and positive raising of a child. For example the mother engaged the child in drawing, counting and naming objects, and took opportunities to extend the child’s knowledge. The child appeared used to this, and showed an eagar (sic) desire to create and to learn.
183. The mother was careful and thoughtful in her raising of the child. At one stage, the child spoke up to say that she did not have a certain item with which she wished to draw. The mother redirected the child onto the large number of crayons that were available. She explained to me “I was trying to help, by rephrasing… by distracting her onto what she does have”.
184. At times a child who is experiencing neglect can present as very “advanced” because they have had to fend for themselves, but the child did not present in this way. She presented as a child exploring and learning in the context of a secure reliance on the mother. The child was not indiscriminate in her attachments, but very much drew close to the mother and took time to warm up to me. The child had the confidence to explore my room, but made recurrent reference back to the mother for encouragement and support.
185. The child did not present as wary of or vigilant about the mother.
186. But, despite her strong day-to-day parenting skills, I am concerned about the mother’s capacity to meet the child’s needs whilst she continues in untreated psychotic illness.
187. Firstly, I am concerned that the mother over time will not be able to meet the child’s basic needs for financial, residential and social/relational stability. It is likely that the mother’s disrupted personal and interpersonal functioning, and in particular her ongoing persecutory delusional misinterpretations of her environment, and her need to evade detection and “care” will lead to recurrent and sometimes (to the child) very sudden dysjunctions and dislocations of residence or school or relationships.
188. Secondly, I am concerned about the risks of unintentional emotional or physical abuse of the child by the mother, as outlined below.
189. Thirdly, I concerned about the possibility of maternal relapse into amphetamine or cocaine use. This pattern of use itself is likely to lead to relative neglect of the child’s needs, and it would also interact with the mother’s psychotic symptoms to significantly increase the risks of emotional and physical abuse.
190. Fourthly, I am concerned about the mother’s capacity to support the child’s relationship with the father, particularly if her delusional concerns about him persist.
191. These maternal deficits and risks would be mitigated by the mother engaging with professional monitoring and treatment of her psychotic illness and her substance misuse disorder, by involvement of maternal family in that process of monitoring and treatment, and by an agreement between the mother and family that both respects the mother’s dignity and autonomy, and gives the family a clear role and mechanism for raising concern.
As to the nature of the mother/child relationship Dr K concluded:
235. The mother is the child’s most significant attachment figure, continuously from birth. Particularly since ceasing (or at least markedly reducing) amphetamine use over the past 1 to 2 years, the mother has focussed significant skills and energy into engaging with and raising the child, and the two have a rich and positive relationship.
236. The child experiences sudden dysjunctions in the relationship when the mother’s behaviour towards the child shifts suddenly for delusional reasons that the child does not understand, for example when the mother will suddenly need to depart with the child, or suddenly become very stern and insistent about a certain issue with no apparent context.
237. When I saw the mother and child, the mother and child were in a settled period, and the child’s overall positive experience of the mother allowed her to accept these dysjunctions.
238. But, I think it likely that during the periods described by the mother when the child was very unsettled, distressed, waking at night, and hard to settle, this unsettledness was due to insecurity and confusion in the child because of the frequency of dysjunctions and the degree of associated maternal emotional disruption, rather than due to [as the mother surmised] spiritual interference by the father.
239. Dr [H] expressed unease about the mother’s intense focus on the child. Similarly, I am concerned about the mother’s degree of preoccupation with the child’s safety and wellbeing. Whilst the intensity of the mother’s preoccupation is proportionate to her perception of risk to the child, it is not proportionate to the actual risk faced by the child, and creates an overheated intensity that over time can create anxiety in the child.
Risk of abuse or neglect in the mother’s care
Having considered the mother’s mental state and the nature of the mother/child relationship, Dr K expressed concerns as to the risk posed to the child if in the mother’s care:
243. I am concerned about the risks of unintentional emotional or physical abuse of the child by the mother.
244. The mother may engage in unintentional emotional abuse of the child through the child’s incorporation into the mother’s delusional beliefs, for example that the father has or is still sexually intruding upon the child, and the child’s experience of the mother’s distress and fear, projected onto the child and then followed by a frantic attempt by the mother to protect, document/ record and comfort the child.
245. In my view, the child’s adverse experience of the same contributed to the child’s distress and disturbed sleep during 2013. The child’s distress then exacerbated the emotionally abusive response in the mother.
246. This is likely to become increasingly problematic as the child gets older, and more aware and verbal. The child is likely to either come to take on the mother’s persecutory belief system, or challenge that system and face conflict with the mother.
247. Such an experience can be developmentally damaging, in terms of the child living with chronic unpredictability in maternal responses, and in terms of the child developing a capacity to form long-term relationships that balance caution with trust, and to reality-test her fears and fantasies.
248. Such an experience can also be developmentally damaging at the pragmatic level of stability of school, neighbourhood, friends and relatives.
249. Currently, the child is protected by her immaturity. She said to me in the presence of the mother that she wants to see daddy, with an easy smile. She then looked towards the mother and said in a rather matter-of-fact tone whilst watching the mother’s eyes to check for approval and acknowledgement “daddy naughty”, and put her hand palm open over her genital region. She said “wee wee… daddy naughty”, and rubbed her hand over her genital region. The mother gave the child approval in terms of a look of concern, then looked towards me. The child then accepted the mother departing the room so that the father could then enter. My impression was (as is consistent with the descriptions of the child’s recount of paternal abuse in the shower on the video described by Mr [H]) that the child was acting out a certain ritual with the mother, which at this stage she did not view as incongruent with also looking forward to seeing daddy.
250. But, if such a pattern of recurrent reporting of abuse continues to be elicited by the mother, over the next few years the child will experience increasing cognitive dissonance, and this will amount to emotional abuse.
251. There is a risk of maternal physical abuse of the child, including a risk of serious physical harm coming to the child. The mother has recorded in her note of “1/1/12” that she physically intervened upon the child’s body in order to protect the child from perceived harm. She lifted the child out of the pram, and held the child’s legs together. She did this on 2 occasions. Because these actions occur in response to delusional beliefs about spiritual matters, there is a risk that the mother might come to the conclusion that more drastic or intrusive action is required to protect the child. We do not have the protective factor of logic to protect the child, because we are dealing with delusions, and delusions that could favour physical pain or suffering over a “worse” spiritual outcome.
252. In my view, whilst the mother is not using amphetamines, the risk of such physical harm coming to the child is low, even whilst her illness remains untreated. The mother has already had the child in her care during at least a year of intense fear and delusional experience of perceived sexual intrusion by the father against the child, and has not acted to harm the child. In my view, whilst the mother is not drug-affected, her strong natural warmth towards and empathy for the child is a protective barrier against any such inclination or action.
253. But, I am concerned that if the mother is using amphetamines or returns to the use of amphetamines whilst her psychosis is untreated and she continues to hold her delusional fears for the child, there is an unacceptable risk of physical harm to the child by the mother.
254. The risk of neglect in the mother’s care appears to be low. Even when she has been quite distressed and preoccupied by her illness, the mother has maintained care of the child.
255. By nature, the mother is not an aggressive or violent person.
256. In the mother’s care there is some risk of occasional exposure to intense interpersonal conflict akin to family violence, with the frightening experience for the child of the mother becoming emotionally uncontained and defensively aggressive. An example of the same was the incident at the maternal grandfather’s home in the early hours of the morning of 15th January 2013. The mother was reported to have kicked the maternal grandfather’s door trying to regain a lighter to light the stove, and had caused an injury to the maternal grandfather’s arm. She was recorded as “repeating herself over and over”, having a “highly hysterical reaction” and “would not calm down”.
Clearly the release of Dr K’s report led to the removal of the child from the mother by reason of the serious concerns expressed. As to the child’s time with the mother in the future Dr K said:
299. Factors that would suggest benefit for the child in spending substantial and significant time with the mother would be:
299.1. the mother engaging with professional monitoring and treatment of her psychotic illness
299.2. the mother engaging with professional monitoring and treatment of her substance use disorder, the key aspect of which will be accepting the need for long-term abstinence from amphetamines, maintaining that abstinence, and engaging in some therapeutic discussion of how she might protect herself from relapse.
299.3. development of a collaborative relationship between the mother and family that both respects the mother’s dignity and autonomy, and gives the family a clear role in supporting/ monitoring the mother and mechanism for raising concern.
299.4. The mother accepting that the father will be playing a significant role in raising the child, and not undermining that role or the child’s relationship with the father
300. I note that:
300.1. the above factors require what might be termed “pragmatic insight” in the mother, that is an acceptance of the court’s requirements and the court’s and the family’s view that she has a mental illness, but do not require a more absolute insight, that is an acceptance by the mother that she has a mental illness, that her beliefs about the father and her spiritual experiences are delusional, and that she must accept treatment.
300.2. It is true that if the mother does develop a more absolute insight, and accept treatment including medication treatment, and if that treatment is effective in reducing or ceasing hallucinations and in decreasing the intensity of delusional thinking, then this will facilitate the mother taking a greater role in the child’s care.
300.3. The mother accepting treatment is not sufficient in and of itself to allow her a substantial time with the child in her care, as treatment response can vary between extremes of marked reduction/ resolution of symptoms in some, and ineffectiveness in others. Also, even if treatment is effective, there is a risk of relapse, so the role of the maternal relatives over time remains important.
Dr K then continued:
303. The mother attend a psychiatrist at a frequency recommended by that psychiatrist, but at least every 4 months, until the child is aged 14. This psychiatrist be given a copy of this report. The orders would enforce attendance, but not acceptance of particular treatment (such as medication). The purpose of these ongoing consultations is to provide some ongoing mental state review, encouragement of abstinence from drugs and assistance with any lapses or relapses into drug use, and to provide an opportunity for the mother to engage with treatment, at least at the level of some supportive psychotherapy or cognitive behavioural strategies around dealing with the stresses of her symptoms, of sharing care with the father, and any loss of or limitation of parenting role.
304. It would likely be most appropriate if this psychiatrist and/or the family became acutely concerned about risk to self or others associated with the mother’s illness, to arrange review by the local hospital or community mental health team and (if necessary) involuntary treatment in that setting. This preserves the ongoing relationship between the mother and this psychiatrist, so that she can go back to him or her then with a discharge summary, and debrief the experience.
305. The father and maternal relatives be given the name and contact details of this psychiatrist, and be able to communicate any concerns to the psychiatrist. I would not expect either of these parties to over-use this provision or to become intrusive, but the psychiatrist would be able to set appropriate limits on their communication if need be.
The mother’s oral evidence
The mother, whilst acknowledging that it was important for the child to have a relationship with the father, agreed that she had completed an application dated 30 September 2015 for the child to attend A Girls School at Suburb Q. Her explanation for not including the father’s details was disingenuous.
The mother acknowledged that since the child was assumed into the care of the Department in February 2014 she had not communicated with the father save for an email enclosing her trial affidavit and an email about furniture.
The mother remains concerned that the child is at risk with the father of sexual abuse with that risk arising from what she has “dreamed” with the child showing physical signs of sexual interference on one occasion while on a train with her alone.
The mother readily concedes her interest in the psychic culture and clearly has an enhanced of view of her skills in that regard, that she practices above “any religion or faith”. She considered Dr K’s report “disrespectful” to a psychic.
The mother was taken in her cross-examination to the various attendances by her on health professionals subsequent to the release of Dr K’s report.
The mother acknowledged that she had attended upon Dr R, psychiatrist to get a report to rebut Dr K’s report. Dr R, she said, informed her that he could not do a report for the Court as “he was not educated in relation to psychic issues”. Dr R’s notes were the subject of subpoena (Exh K) and they included his reports to the mother’s referring general practitioner dated 17 June 2014 and 17 July 2014. In the report dated 17 July 2014 Dr R reviews the mother’s representations as to her “psychic special gifts and abilities” referring to them as delusional. Dr R concluded as follows:
My impression is that [the mother] does have a delusional disorder. She does have tangential thinking. She’s got fixed a delusional belief about having special ability, and about being able to foretell the future. I believe that she doesn’t have any insight. In relation to treatment for her delusional disorder, she would probably benefit from some medication and perhaps some cognitive therapy. However she quite clearly stated she didn’t want therapy. She didn’t believe she had any psychiatric condition, and express some concern about her problems not being helped by my assessment, and her fears about what might happen in court.
The mother agreed that prior to the mother consulting Dr R she had attended upon Ms G, psychologist on 26 March 2014 and 2 April 2014. Ms G provided a medicolegal report to the mother’s then solicitors dated 2 April 2014. In conclusion in that report Ms G said:
[The mother] may also benefit from having a detailed clinical assessment of her mental health conducted by an independent psychiatrist or clinical psychologist to challenge the seriousness of the allegations that have been made about her mental health, drug use and history of domestic violence.
When it was suggested to the mother by counsel for the father that the mother has not sought help because she was afraid of the diagnosis the mother simply replied “I have continued the process”. The mother acknowledged that she had attended upon:
a)Ms G, psychologist, referred to above;
b)Dr R, psychiatrist, referred to above;
c)Dr W, psychiatrist in late 2014 to whom she was referred by the ICL on the recommendation of Dr K. In attending on Dr W the mother conceded that her intention was to obtain a report to rebut Dr K’s report and said that she was not offered treatment and did not seek any even though the purpose of the referral was for treatment. The mother did not agree with Dr W’s conclusion that she had a delusional disorder that was difficult to manage;
d)Dr I, psychiatrist on referral from her general practitioner in June 2015, attending upon Dr I on one occasion in October 2015. Nothing came of that appointment save that the mother was referred to a Dr M.
e)Dr M, psychiatrist after obtaining a referral from a general practitioner on 6 October 2015. The mother attended upon Dr M on one occasion (Exh R).
The mother conceded that she had no ongoing therapeutic relationship with any of those practitioners and further conceded that she was told by the Department caseworker that she was “fixated on a report and not engaging in treatment”. The mother conceded that there was no one monitoring her mental health and contended that she did not accept that she had a psychiatric disorder and that she did not need therapy.
The mother further conceded that the maternal grandmother had encouraged her to get mental health treatment, asserting that “she does not believe I’m psychic”.
The mother described the child as bright, intellectual and gifted spiritually based on her “aura” that has a rainbow quality, suggesting that the child’s spiritual gift needs to be nurtured. She described the strong spiritual connection between herself and the child as mother-daughter “bloodlines”.
The mother asserted that the father’s family needed education in relation to the child’s giftedness.
The mother expressed concerns in her correspondence with the Department as to “religious items that the father is forcing upon the child”, asserting that a cross was of “some deep cult like design...from the depths of church cult or heavy religious people” as was a Bible that contained a picture of a person with curly hair that had a likeness to the father’s sister. The mother complained that the paternal family feed pork to the child and that the child had used a “rude Mediterranean hand gesture” that consisted only of the child touching her thumb with one of her fingers.
The mother asserted that she was working in specialised security with the Australian Federal Police, New South Wales Police or the Australian Army. Such a contention seems to be based upon pictures uploaded by the mother to her Facebook site and telephone calls made by her to police hotlines. She explained to the Court that she had only recently done a psychic reading for “internal affairs”. The mother produced a variety of substantially inadmissible documents purportedly attesting to her reputation and competence in the psychic culture, none of which of were any assistance to the Court.
In oral evidence the mother described her living circumstances. She lives in a three-bedroom apartment that is rented by her for $470 per week. Net income from her primary occupation as a financial administration officer was $1100 per week with her current employment contract now extended past April 2016. She is required to work a 38 hour week substantially between the hours of 8.00 am until 4.00 pm with some flexibility. On occasions she had taken in various boarders to defray the cost of her rent.
In addition to her contract employment the mother has a small business known as “AA Services” which she operates from home with her equipment set up in her lounge room. The mother recently paid $9000 for a specialised software product. Otherwise the mother uses conventional methods by which to provide her services.
The mother also attends events where she offers her services. Should the child live with her she would continue to operate her business. Ideally the mother would like to move into the area of airport security, she giving evidence that she was able to determine the contents of baggage by reason of her psychic ability before that baggage passes through airport screening.
When asked about her conduct during interview with Dr K when she spoke of “interference” the mother explained that the episode was called a “connect” during which she could not focus of Dr K’s questions. She surmised that the cause could well have been gynaecological pain. The mother produced no evidence to support that contention. When asked whether she had “felt intruded on” in the past two years her response was that when you know the psychic industry you need to be aware not to connect to someone unwittingly.
When asked about her attendance at X Hospital with the child she denied that she did so in an attempt to prove that the child had been sexually abused by the father, saying that she attended to demonstrate the child’s pain but not to establish any cause. She conceded that she had been present when the child had been “spiritually sexually abused”, steadfastly asserting that it had happened and that she held the child’s legs together because of her mother’s instinct. She again said that at the time she could smell “male cum”. She could not explain why but she smelt it. This incident as referred to in Dr K’s report as an “olfactory hallucination”.
The Single Expert’s oral evidence
Prior to giving oral evidence Dr K had the opportunity of considering the trial affidavits filed by the various parties including the voluminous exhibited material comprising part of the Departmental caseworker’s affidavit.
Subsequent to the preparation and release of his report Dr K received from the mother’s then solicitors a letter dated 4 June 2014 raising some issues with and seeking clarification of aspects of the report. Dr K responded by letter dated 19 June 2014 (Exh N). Nothing in his response made any qualifications to his report or the recommendations contained therein.
Nature of the risk to the child
In response to questions from counsel for the father Dr K explained the nature of the risks to the child by reason of the mother’s untreated mental health illness. These included:
…that significant exposure to maternal care without supervision creates a very high risk of loss of relationship with the father, because... she has quite fixed and elaborated delusions about the father…
...the loss of relationship with the father becomes amplified as a risk, because when the mother is unwell the child won’t have the father to go to because she will view him as dangerous. So there’s a risk she might have to go into alternative care or linked up with people that she has been told are bad for – for quite a number of years…
There is the risk of what gets called … a secondary delusion, or a – or a folie á deux, …I think a psychic subculture itself is not dangerous to a child… but if added to that psychic subculture is delusional thinking then the child may grow up just normalising things like psychic messages from important people, and that can disrupt the child’s own reality testing…
…a significant risk of disrupted broader family and societal relationships, because if the mother becomes suspicious about others like extended family or – or neighbours, or people at school, that those relationships will be cut off without much explanation or with a negative explanation. There will be a need to move schools or homes.
The protective reasons for supervision
Dr K was of the view that the child having supervised time with the mother would markedly reduce any damage in terms of the child’s experience of each parent and avoid inadvertent emotional abuse by the mother of the child by dragging the child into a sort of bizarre partisan thinking. This risk, he said, could also be reduced by the child having appropriate “children of parents with mental illness intervention” which is respectful of the mother but gives the child a better context about the mother, loving her, having many things to offer her, but being unwell.
Whilst supporting the proposals for the mother to have shorter periods with the child, Dr K expressed some concerns about overnight periods with the mother. One risk he said is that the child may be exposed to long periods of maternal delusional thinking which is more disrupting than during a two hour supervised period. The main risk though he said was one of intensity of connection versus role. His experience was that the child grows up best and the relationship with the parent is best if the frequency and intensity of time matches the role of the parent. Sadly, he said, if the Court is making the decision that the mother is not playing an overt parenting role and needs supervision “it’s better that the child has a lower dose, like six times a year, because she can love mum, she can look forward to it but the… dose matches the role”. Whereas a high dose of positive intervention in an artificial environment may cause the child to assume a false attachment to the mother.
As to when the mother’s time with the child should be supervised, in relation to the suggestion that perhaps it should end when the child reaches age 13, Dr K was of the view that such age was too early as an absolute time. He recommended that from the age of 13 there be some flexibility but there be a maintaining of the baseline of six times a year supervised right up until 18 but that from age 13 there is the option of unsupervised time up to a maximum of say once a month. However Dr K expressed caution in the following terms:
A lot of development occurs between 13 and 16 and it’s possible that will be a very positive part of opening up the connection with her mother, but it’s also possible it would be an absolute disaster for her development and pull her into a huge personal conflict at a very vulnerable period of her development.
Dr K was of the view that it is likely that the child
…will have a rich and positive relationship with her mother when she is an adult because her mother has a lot to offer her but I think [the child’s] development needs protection so that she can have a strong foundation of understanding of herself and the world in order to engage with her mother, and I think you – you could really just blow that wide open. For example, if – if [the child] developed an idealised view of the mother in her late primary school years and was being raised well by the father but was a bit, sort of, grumpy about aspects of that – that upbringing, that whole thing could be blown right apart by – by the end of supervision at age 13.
The mother’s post-report consultations
In his report Dr K expressed the following concern:
130. I am concerned that the mother’s mental illness is disrupting her judgement and insight, such that she to date is applying her energies to avoiding detection and treatment of her difficulties, rather than to gaining appropriate assistance and treatment.
He was asked by counsel for the ICL to consider the mother’s various attendances at health professionals since his report and was asked whether those attendances reinforced his concern. He replied:
Yes, and the point that I was highlighting there – which I think the fact that she has seen those five professionals shows – is that unlike some people with schizophrenia who are globally dysfunctional, the mother has quite high functioning in some domains. And, you know, to organise herself to get to those five professionals, and to sort of meet them and pay their bills, and so on, she’s high functioning. But all that energy is going into sort of what I would view as proving a false case. And there was a very serious example of that in terms of risk, in my view, when the mother took the child to hospital under an assumed name at a very young age with concern about abuse, and in my view the child was at quite significant risk. People got worried and referred her for mental health review and she passed. You know, she pulled herself together, gave a credible story, and off she went without a firm diagnosis or treatment. I suppose my concern is that in some ways the mother’s capacity in those areas increases risk to the child.
The mother took the opportunity of asking Dr K questions in cross-examination. Mostly the questions posed by her were self-serving and sought to highlight her perception as to the competency of her psychic abilities. The nature of her questions to the single expert demonstrated little reflective capacity in the mother in relation to the needs of her child over and above her own needs that were overshadowed by her engagement in the psychic culture. Dr K repeated his concerns to the mother about her lack of “pragmatic insight”.
Proposals for the child’s time with the mother
Ultimately towards the end of his oral evidence Dr K was of the view that the mother was prioritising her own psychic abilities over interests of the child, saying that there was an obsessional quality to the mother’s engagement with psychic things that is expressed in the recurrent nature of her emails to the Department and the length of some of those emails reflective at some level of a constructive adaptation to having an untreated psychotic illness.
When it was put to Dr K that perhaps the child spend time once a month with the mother, he expressed the view that six times a year is probably better with it being useful if those six can be shifted around a little to include things such as Mother’s Day and the mother’s birthday. He suggested that because of the mother’s potential for intense delusional disorganised thinking and loss of judgment that it would be worthwhile to make orders that very much stipulate a baseline time such as “the second Sunday of these months”. He continued on to say that “it’s better for the child to have six a year that have a certain rhythm to them and that just becomes part of the rhythm of her life; that mum is important, but her – the day-to-day connection with her is proportionate to her role”.
The maternal grandmother’s time and transition to the father’s care
Dr K agreed with the proposition that there should be ongoing and regular time for the child with the maternal grandmother, saying that such time could be left up to goodwill but it “would be better put in orders at least a fall-back position of… a weekend a month or something… [Such an arrangement] would be very positive – a very positive sort of arrangement for the child.”
He considered that a transition to the father’s care prior to the child commencing kindergarten in 2016 would make sense. His impression was that the child at a day-to-day level was pretty connected with both the maternal grandmother and the father, with both of them “being pretty mature about it”. Otherwise he said it helps the pragmatics of getting to and from school.
Parenting
The Secretary of the Department has intervened in these proceedings under s 91B of the Act. As such the Secretary is a party to these proceedings: (s 91B(2))
The Department, of course, is a nonparent as is the respondent maternal grandmother. Many of the considerations set out in the Act relate to parents. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
It is clear having regard to the circumstances of the child both historical and at present as referred to above that the Department is concerned with the care, welfare and development of the child.
The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.
Consideration of a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is therefore appropriate to apply the relevant considerations by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
… there is no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …
The Full Court observed in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said:
…all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant.
The Full Court in Yamada & Cain (supra) said at [27]:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
General Principles
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
Family violence is defined in s 4AB of the Act. For the purposes of this relationship the provision relevantly refers to violent, threatening behaviour that causes a person to be fearful and can include assault or repeated derogatory taunts. For the reasons discussed above there is evidence to conclude that there has been family violence perpetrated by the father on the mother and in some circumstances in the presence of the child.
The single expert considered the context of such violence in the following terms:
198. At interview with me, the father showed a reasonable capacity to take a step back and to think about his own thinking and behaviour, and the thinking and behaviour of others.
199. The father expressed regret for his intrusive and aggressive behaviour towards the mother after the separation, though that regret was diminished by his minimising of the extent of his aberrant behaviour, and by his to some extent justifying that behaviour on the basis of his own loss and shame. The father expressed a strong and I believe genuine intention to stay well away from the mother, and not to react aggressively to her.
200. It is my impression that the aggressive and intrusive behaviour shown by the father during 2011 and 2012 post-separation was not an indicative of a broader pattern of antisocial personality functioning. Prior to and since that period, the father appears to have been able to maintain positive relationships in the workplace and with family. The father presented as a man who had mostly “moved on” from the hurt of the separation. I saw no evidence of preoccupation, or of desire for reunion or revenge.
Notwithstanding the background issue of family violence the circumstance that presents itself to the Court is the overshadowing issue of the mother’s untreated mental health. A consideration of the matters discussed above and of the best interest considerations set out in s 60CC render it clear that shared parental responsibility is not in the child’s best interest and that ultimately as proposed by the single expert, the ICL and the Department that such responsibility should ultimately repose in the father after a considered period of transition.
The presumption of equal shared parental responsibility is thus rebutted.
Equal or substantial and significant time: s 65DAA
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In light of there being an order for the father ultimately to have parental responsibility, it is not required that consideration be given to the child spending equal time or substantial and significant time with each of the parents.
Accordingly other orders to be made must be considered in the light of the best interest considerations.
Best interests of the child: s 60CC
The primary considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence with this factor to be given greater weight of the two primary considerations.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 52, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The risks to the child of having unsupervised time with the mother for some years to come are set out above. The prospect of the child having a meaningful relationship with the mother in terms of that relationship being important, significant and valuable to the child need to be considered in the context of those risks. Regrettably the evidence is clearly indicative of the child’s future relationship with the mother being in a significantly circumscribed fashion as recommended by the single expert Dr K for the reasons set out in his report and amplified during the course of his oral evidence.
The child’s relationship with the father will see her transition into the father’s full-time care. For reasons referred to above, the Department will for a short period hold parental responsibility for the child and thereafter that responsibility will pass to the father but he will remain required to accept the supervision of the Department and reasonable recommendations made by the Department for a further period of nine months. This is appropriately reflective of concerns relating to his post-separation behaviour and historical drug abuse. Nevertheless it is clear that for the child to have a meaningful relationship with the father she needs to live with him primarily but maintain a relationship with the maternal grandmother and a relationship with the mother under the circumscribed arrangements referred to above. The father is living at present in appropriate circumstances with extended family that all care for and have significant relationships with the child. The child’s continuing relationship with the father will thus be valuable, important and significant to her in her proper development.
Section 60CC(2)(b): need to protect
This is the subject of overwhelming concern to the single expert in the overshadowing circumstances of the mother’s untreated mental health. The concerns expressed by the single expert are considered and reflective of the evidence before the Court.
This concern it needs to be addressed by the proper management of the child’s relationship with the mother as proposed by the single expert. In reality this concern is virtually determinative of these proceedings is in the best interests of the child.
The additional considerations
The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are discussed below.
The subject child is only young and in the circumstances of this matter her views are not the subject of consideration.
The child’s relationships include a good relationship with the mother and the father and significant relationships with extended maternal and paternal family. However the child’s relationship with the mother as has been referred to above is overshadowed by the mother’s untreated mental health circumstances that when enmeshed with her involvement in the psychic culture represents a significant risk to the child. In such circumstances the mother’s relationship with the child needs to be contained appropriately.
The child’s relationship with the father will build on the present good relationship to a circumstance where the child is in the father’s full-time care. It is appropriate that orders be made facilitating the child’s ongoing time with the maternal grandmother and extended maternal family.
The father’s engagement in the child’s life in terms of being able to participate in major long-term issues, spend time with the child and communicate with the child has been significantly limited by reason of firstly his own conduct and then the unilateral conduct of the mother. This to a significant extent has meant that he has not had the opportunity of being engaged the child’s life to date. That position will clearly improve into the future. The mother until February 2014 was the child’s primary carer and in that context was able to engage in long-term issues relating to the child and the child’s day-to-day life. Regrettably that circumstance has changed since the child was removed from her care and her engagement with the child will be significantly limited into the future.
The mother until such time as the child was removed from her care undertook the substantial obligation in terms of maintaining the child in all respects. The father made some contribution by way of financial support. From February 2014 the maternal grandmother has assumed the primary care of the child and in a staged transition the father will do so hopefully by the time the child commences school in late January 2016. The mother is in employment and there is some expectancy she will be able to provide financial support for the child into the future.
The child’s circumstances will again substantially change. The child’s circumstances change dramatically in February 2014 when the child was removed from the mother’s care and placed with the maternal grandmother. The child will gradually transition into the father’s full-time care and the single expert has little reservation that that change will take place without significant impact on the child by reason of the child’s now established relationship with the father and the extended paternal family. Although as recommended by the single expert the child should maintain significant contact with the maternal grandmother and the extended maternal family.
There is no issue as to the practical difficulty and expense of the child spending time with both the mother and father as they are both living in the greater Sydney area.
The capacity of the parents to provide for the needs of the child including the child’s emotional and intellectual needs have substantially been considered above. Absent ongoing mental health issues the single expert makes positive comment as to the mother’s capacity but the underlying circumstances of her untreated mental health manifests itself in significant emotional and psychological risk to the child.
As to the father although his capacity is as yet untested as primary carer, the evidence is indicative of him having that good capacity particularly with the support of extended paternal family where he presently resides.
The evidence is also indicative of the maternal grandmother and the extended maternal family having the capacity to appropriately engage with the child as does the extended paternal family.
The child is only four years of age and that immaturity is clearly indicative of appropriate parenting arrangements been put in place so as to protect ongoing psychological and emotional development.
Both parents have demonstrated a less than satisfactory attitude to the child and to their responsibilities of parenthood. Their relationship was characterised by family violence particularly from the father though the mother was not blameless in this regard. Both the mother and father have a history of the use of illicit drugs. The mother’s ability to understand appropriately her responsibilities of parenthood is regrettably undermined by her untreated mental health. The father it appears is gaining an appropriate understanding and attitude towards the child and his responsibilities of parenthood by reason of his re-engagement with the child once the child was removed from the mother’s care by the Department. It is hoped that the father’s engagement in this regard will continue to develop as the child moves into his care.
There has been family violence and that is considered above in detail as has the views of the single expert in relation to the father’s behaviour. Otherwise the circumstances of the apprehended domestic violence order being made for the protection of the mother is also considered above.
It is preferable to make an order in the context of these proceedings that would be least likely to lead to the institution of further proceedings in relation to the child. However such a circumstance cannot be certain.
There is no other relevant fact or circumstance to be considered.
Conclusion
The above discussion of the best interest considerations are clearly indicative of orders being made in the best interests of the child substantially as proposed by the Department, the ICL, the maternal grandmother and the father with those orders being supported by the recommendations of the Single Expert.
Orders will be made accordingly.
The independent children’s lawyer’s costs
An application was made by the ICL seeking orders that the parties – the mother and the father of the subject child – pay the Independent Children’s Lawyer’s costs.
Parenting proceedings before the Court have been protracted, initially commencing in the Federal Circuit Court of Australia in early 2013 before being transferred to this Court.
The ICL has been engaged from April 2013 until the final hearing in November 2015.
The ICL seeks an order for costs in the sum of $15,466 including GST representing solicitor and counsel’s fees.
The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just. The relevant considerations in relation to an order for costs are set out in s 117(2A).
The threshold presumption as to each party bearing their own costs has no application to the ICL, who is not a party.
There is power under the section, subject to other statutory provisions referred to below, to make orders for or against the ICL and the Court may make such order as to costs of the ICL and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma [2013] FamCA 566).
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
The ICL is to be treated as if unfunded.
In De Roma (supra) at [20] – [21], Watts J said:
20.In considering what order (if any) is just, the legislation mandates that the court have regard to those matters set out in s 117(2A) FLA.
21.All the matters set out in s 117(2A)(a)-(f) FLA relate to the circumstances and conduct of the parties during the proceedings. Section 117(2A)(a) FLA mandates the court have regard to “the financial circumstances of each of the parties to the proceedings”. As already discussed, the Independent Children's Lawyer is not a party to the proceedings. However, s 117(2A)(g) FLA, namely “such other matters as the court considers relevant”, is wide enough to enable the court to take into account matters relating to the Independent Children's Lawyer’s conduct during the proceedings.
Neither party submits that the conduct of the ICL is in any way relevant. Indeed, the ICL played a significant role in these parenting proceedings, particularly where in the latter part where the mother was unrepresented.
The relevant considerations to the Court’s determination are set out in section 117(2A), in particular s 117(2A)(g) as to “any other relevant matter”.
The Court is required to have regard to the financial circumstances of the parties.
The father is in full time employment earning about $55,000 per annum after tax. He lives with family. He owns a home that is tenanted. There is a small shortfall of rent over outgoings in rented premises. He will have the primary care of the subject child and should receive some financial support from the mother by reason of a prospective CSA assessment.
The mother has been in contract employment with her contract now extended past April 2016. Her income is similar to that of the father plus she earns casual income and other income from her business. She resides in rental accommodation. She will have an obligation to contribute to the costs of the single expert.
Neither party is in receipt of a grant of legal aid.
No submission was made that any of the other matters set out in s 117(2A) are relevant and that is the case.
As to “hardship” in the context of s 117(4), the Court is to consider the financial consequences for either or both parties if a costs order is made.
Both parties are in employment. Notwithstanding any order for costs they both may make application to Legal Aid New South Wales for a waiver or consideration as to terms of payment. Neither party has established hardship.
The ICL’s role in the proceedings was crucial to final resolution of all issues.
Orders as sought by the ICL as to costs will be made against both the mother and father in that they pay each pay the ICL’s costs in the sum of $7,733 within three months from this date as set out at the forefront of these reasons.
The single expert’s fees
On 29 July 2013 the Court ordered the appointment of the single expert Dr K. Part of that order was that the father initially met those costs with ultimate liability of the mother for same if any reserved to the trial judge.
The father has paid $11,000 in relation to the single expert’s fees. There are further fees payable in relation to the single expert being available for cross-examination.
The Intervenor Department of Family and Community Services has agreed to meet one third of Dr K’s fees, thus leaving an issue as to the balance.
Rule 15.47 of the Family Law Rules 2004 (Cth) provides that the parties shall pay the single expert’s fees equally subject to contrary order (Rule 1.12).
The maternal grandmother has been engaged in the proceedings by reason of the child being removed from the mother into her care as discussed above. It is not appropriate that she be required to contribute to the costs of the expert. She has played a supporting role and should not be the subject of a financial impost.
The mother and father’s financial position is discussed above.
It is thus appropriate that the father and mother overall each contribute one third of Dr K’s fees. An order will be made to that effect.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 December 2015.
Associate:
Date: 10 December 2015
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