HAAK & JUSIC

[2020] FCCA 45

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAAK & JUSIC [2020] FCCA 45

Catchwords:
FAMILY LAW – Parenting – 3 year old child – Single Expert’s opinion was that: mother has borderline personality disorder (BPD) – BPD is a lifelong condition – BPD will not be cured – BPD may be better managed by the mother with appropriate treatment – child’s safety requires supervised time only until the mother has had long term treatment with appropriately qualified expert without evidence of relapse or major events or issues AND when child is of an age to have appropriate self-protective capacity – child will benefit from supervised time with mother.

FAMILY LAW – During closing submissions (unrepresented) mother accepted Single Expert’s opinion – father and Independent Children’s Lawyer agreed – Court accepts Single Expert’s opinion – Orders made in accordance with Single Expert’s opinion.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60C(3), 117

Applicant: MS HAAK

Respondent: MR JUSIC

File Number: SYC 28 of 2017

Judgment of: Judge B Smith

Hearing dates: 11 February 2019, 12 February 2019 and 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Sydney

Delivered on: 14 January 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms Petrie

Solicitors for the Respondent: Gibson Howlin Lawyers

Advocate for the Independent Children's Lawyer: Mr Holmes

Solicitors for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

1. That all previous parenting Orders in relation to the child [X] born on … 2016 ("the Child") be discharged.

2. That the Father, Mr Jusic born … 1984, have sole parental responsibility for the Child, with the Father to provide notice to the Mother, Ms Haak born … 1984, of any medical, educational and religious decisions made by him.

3. That the Child live with the Father.

4. That until the Child commences primary school, the Child shall spend the following time with the Mother, at a mutually agreed place, with such time to be supervised by a professional supervision service, or at the Father’s discretion by such (lower cost) supervision service as he considers appropriate:

   (a)Each Monday from 9:45am until 12:45pm;

   (b)Each Friday from 10:00am until 12:00pm;

   (c)On significant occasions, and including the Child's birthday, the Mother's birthday, Mother's Day and Christmas Day, when the Mother is able to arrange for supervision for up to 3 hours;

   (d)At other times as agreed between the parties.

5. That once the Child commences primary school, the Child shall spend time with the Mother, at a mutually agreed place, with such time to be supervised by a professional supervision service, or at the father’s discretion by such (lower cost) supervision service as he considers appropriate:

   (a)Saturday or Sunday each week for up to 4 hours;

   (b)On significant occasions, and including the Child's birthday, the Mother's birthday, Mother's Day and Christmas Day, when the Mother is able to arrange for supervision for up to 3 hours;

   (c)At other times as agreed between the parties.

6. That the cost of such supervised time pursuant to Orders 4(a), 4(b) and 5(a) herein be borne equally by the Mother and the Father.

7. That the cost of such supervised time pursuant to Orders 4(c) and 5(b) herein be borne solely by the Mother.

8. That the question of who shall bear the costs of such additional supervised time as may be agreed between the parties pursuant to Orders 4(d) and 5 (c) is to be agreed between the parties as part of the agreement to the additional time.

9. That the Mother is restrained from consuming alcohol whilst the Child is in her supervised care, and for twelve hours prior to the Child coming into her supervised care.

10. That the parties are permitted to obtain a Country A passport for the Child and the Mother shall forthwith provide such passport to the Father.

11. That in the event the Child suffers any injury, illness or requires any medical attention while in the care of either party, that party will notify the other party as soon as practicable, but no later than within two (2) hours of the injury, illness or medical treatment occurring.

12. That each party notify the other within twenty-four (24) hours of any changes to their address, landline or mobile telephone number and email address.

13. That each party is hereby restrained from denigrating the other party or the other party's family in the presence or within the hearing of the Child and will take all reasonable steps to ensure that any third party does not denigrate the other party or the other party's family in the presence or within the hearing of the Child.

14. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VIJ of the Family Law Act 1975, the Mother, Ms Haak born … 1984, and her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said Child [X] born on … 2016 from the Commonwealth of Australia until he attains the age of 18 AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child's name on the Watchlist for the said period until the Court orders its removal or with consent of all parties.

15. That the Child be permitted to travel internationally or interstate with the Father Mr Jusic born … 1984 upon three (3) weeks' notice to the mother and provision of a full itinerary for a period of twenty-one (21) days, and the parties shall make arrangements for appropriate make up time for time that would otherwise have been spent between the Mother and the Child.

16. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 28 of 2017

MS HAAK

Applicant

And

MR JUSIC

Respondent

REASONS FOR JUDGMENT

1.  Overview and summary

1. These are proceedings for parenting orders pursuant to part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of [X] born … 2016, aged 3, (“the child”).

2. The Applicant, Ms Haak (“the mother”) born … 1984 is 35 years of age. 

3. The Respondent, Mr Jusic (“the father”) born … 1984 is also 35 years of age. 

4. The other relevant people are Ms A Jusic and Mr D Jusic, (“the paternal grandparents”) and Dr C, clinical psychologist, who provided a report and gave evidence (“the expert”).

5. The mother is originally from Country A and arrived in Australia in 2001 for schooling. 

6. In about February 2014 the parties commenced cohabitation at the paternal grandparent’s home and had an on-again off-again relationship, later living together at Suburb E for a period.

7. The relationship broke down and the parties separated on or about 22 June 2016, not long after the child’s birth.  On 23 June 2016 the then Department of Family and Community Services (FACS) placed the child in the care of the father.  There was supervised time between the child and the mother, at that time supervised by the paternal grandparents.

8. On 3 July 2017 interim orders were made.  In summary those orders gave the father sole parental responsibility and required the child to live with the father.  The mother was to have 5 hours of supervised time with the child per week.  The parties were each required to pay half of the cost of supervision.  These were the orders in place at the time of hearing.  The supervised time between the mother and the child worked positively for the child. 

9. The mother’s Initiating Application sought equal shared parental responsibility and for the child to return to live with her and spend time with the father for day time visits 3 times per week and on special occasions.

10. At the end of the hearing during oral submissions the mother, who was self-represented and speaking last, advised the Court that she accepted the evidence of the expert and that the present arrangement should not substantially change.  Prior to that concession the Independent Children’s Lawyer (“ICL”) had spent some time going through the father’s proposed orders, with which the ICL generally agreed, but making some amendments to reflect the ICL’s final position.  The ICL’s proposal was similar to the existing interim orders.  The proceedings became, as counsel for the father submitted, virtually consent orders. 

11. I was satisfied that the mother understood the effect of what she was agreeing to and that given all of the evidence the result was, at that point, all but inevitable.

12. The ICL asked the Court to provide short reasons for approving the orders.  He asked to Court to confirm that there is some prospect of the mother eventually having unsupervised time with the child in future if she has appropriate treatment in order to provide her with some guidance and motivation to address her mental health issues for the benefit of both her and the child.

13. Given the above, these reasons will be relatively short and address only the evidence and issues necessary to explain the orders and provide some assistance to the parties and the Court at some future date.

2.  The Single Expert’s report

1. The principal issue in the proceedings was the mother’s mental health and parenting capacity. 

2. There was voluminous historical material which was considered, analysed and summarised by the expert, as set out below.

3. At the time of trial the child had spent most of his life in the care of the father, ably assisted by the paternal grandparents, as a result of the intervention by FACS.  The mother was having supervised time with the child twice a week for a total of 5 hours per week.

4. The historical material included, inter alia, the following information:

5. In April 2009 the ex-wife of an ex-partner of the mother:

   “reported to police that [the mother] had continued to make contact with her children, including attending her grocery shop 15 times in the previous month and had approached the children and said things such as, "I still love your Daddy. Where is your Daddy? Why does your mum lie to you? Your Dad is in gaol." Police applied for an AVO. On 18 May 2009 there was an AVO in place against [the mother] with her partner's ex wife and children as the protected persons.” 

6. The mother was subsequently arrested for beaching this AVO when at the other woman’s home in the presence of the children.

7. During her pregnancy:

   “In December 2015 she was diagnosed with Cluster B and C personality traits with an anxious ambivalent attachment style. She had reported intense and difficult to control anger, impulsivity and suicidal ideation.”

   “She reported illicit drug use including: ecstasy, speed and cocaine. She reported that she had intermittent thoughts of not wanting to live. The clinician noted that she had a tendency to blame others and had an external locus of control.”

   “The mother also informed the social worker that on one occasion she tried to jump out of the car when it was travelling at 30kms per hour.”

   “In February 2016, the mother undertook a mental health assessment with the psychiatry registrar. The notes indicate the mother having longstanding suicidal ideation related to probable borderline personality traits, including emotional dysregulation and a propensity to self-harm when distressed. The records note that the mother uses primal coping mechanisms such as splitting, regression and acting out and described her as having a disorganised attachment style. The mother was considered to be psychiatrically vulnerable with significant risks around self-harm, although there was not evidence of an Axis 1 diagnosis.” And that “The … hospital were aware that the mother was refusing mental health services at that time…”.

8. In February 2016 FACS interviewed the mother who:

   “reported a long history of mental health concerns and suicidal thoughts since she was a child. She disclosed a previous suicide attempt, a history of having been raped, a history of trauma, a history of domestic violence in two previous relationships and a history of having been bullied at school by teachers, peers and her older sister. The notes indicate that the mother had also reported a history of (omitted) and having had a history of illicit drug use involving cocaine, speed and ecstasy” and that in March 2016 that the “the mother had not accepted counselling or intervention.”

9. Post the child’s birth the expert noted:

   “it is common ground that when [the child] was 8 weeks old in … 2016 that the mother became intoxicated, destroyed the father's property (involving smashing his computer and destroying household objects, forcing entry to the paternal grandparents' home, taking [the child] and driving with him whilst intoxicated and when he was not restrained in his seat, and dropping him on the ground. The mother did not seek any medical attention at this time. The mother was then admitted to the Psychiatric Unit at Hospital F under the Mental Health Act. At this time, the hospital notes indicated that the mother presented as suicidal and also expressed thoughts of harming [the child] and [the father]. The mother was unable to guarantee to the clinicians that she would not act on these thoughts. The mother also made statements that she would kill [the father]'s mother and that [the child] would be better off dead than cared for by the paternal grandparents.”

10. On discharge from the hospital in June 2016 the mother started treatment with Ms G, clinical psychologist, with notes indicating borderline personality traits:

    “[I]n August 2016 the mother was found after an overdose and was treated by ambulance officers and taken to hospital [and] again admitted to the PECC unit following an overdose of alprazolam with alcohol.

    …

    On admission, the mother had a number of high-risk behaviours including ripping her cannula out and threatening to leave the ward. She was initially admitted under the Mental Health Act. She was identified to have depression/mood dysregulation and was prescribed antidepressants at discharge.”

11. FACS recorded on 13 September 2016 that:

    “the mother asked FACS what they would do if she took the baby to Country A for good. The notes indicate that the caseworker indicated that they would be very worried and did not think that the baby was safe with her and that the mother said, "There is nothing you can do if I was to". The notes indicate that the caseworker asked the mother if that was what she was planning and that the mother replied that she had been thinking about it.”

12. The expert summarised the conflicting evidence about an event in October 2016 when:

    “the mother forced entry to the paternal grandparents' home and there was an incident.  There are very different accounts of this incident. The father, his parents, and the police records indicate that the mother was hysterical, violent and threatening, that she assaulted her own mother and the father and that she took [the child] out of his cot and was acting as though she was going to take him.”

13. The expert’s opinion in her written report included conclusions that:

    “The priorities at this period for any infant include: consistent stable care giving, a structured and predictable routine, continuity of attachment relationships and protection from conflict and trauma. It is my view that the Court needs to give high priority to these things to both ensure [the child]'s safety in the short-term but also ensure his best chance of optimal psychological and physical development in the long-term.”

    “… I consider that the mother has significant vulnerability with respect to her mental health. It is my view that, as expressed by the clinicians, that the mother meets criteria for borderline personality disorder. It is also my view that the issues with the mother's mental health have been longstanding and were evident well before the relationship with the father.  The mother's mental health may therefore be understood as a longstanding issue, and that her mental health deteriorates at times of relationship stress. The mother's mental health means that there is a high likelihood that she will behave in an impulsive, erratic and potentially violent manner. She has had at least two significant suicide attempts, many alleged threats of self-harm, and ongoing reported incidences where she has had thoughts of harming herself, [the child] and others.

    Having said that, however, I think the mother is undergoing appropriate mental health treatment for her condition. The reports are that the mother has been compliant and has been utilising the skills learned in DBT. Despite this good progress, however, I remain extremely concerned at the likelihood that the mother will have a relapse, that the mother's condition is a very longstanding one, and that even if the mother is utterly compliant with treatment, that there are ongoing and considerable risks with respect to her parenting capacity.”

    “… I felt the mother had enormously minimised the issues in the relationship with the father, the extent to which she had put [the child]'s life at risk, and the degree to which she took responsibility for her own actions. The psychiatrist at her first hospital admission reports the mother having an external locus of control, that is, a tendency to blame others or situations, for her current circumstances or behaviour. I utterly concur with this view. … She displayed no insight into the degree to which her behaviours had distressed [the child], had placed him in danger and had caused him distress and disruption. The mother was also utterly critical of the paternal grandparents who, in my view, have worked diligently to try to ensure that [the child] has a stable and predictable life.”

    Unfortunately, I think that these aspects of the mother's presentation mean that there is a very low likelihood that the mother will accept responsibility for her actions, and will take appropriate measures to ensure that she no longer presents a risk to herself or [the child].”

14. The expert concluded that the child had a very close and secure attachment relationship with the father, and had developed significant, secure attachments with each of the paternal grandparents, and that the father “had a very good capacity to meet the child’s physical development, psychological, emotional and intellectual needs.”

15. The expert also concluded that the child has a loving relationship with the mother, but unfortunately that:

    “With respect to the care of the mother, as mentioned previously, I think that [the child] is at ongoing risk of physical, psychological and emotional harm both in the short and long-term. I think the mother's lack of insight, tendency to blame others, history of emotional volatility, physical violence and suicidality mean that [the child] is likely to be exposed to dangerous situations particularly given he is a young infant.”

16. The expert also concluded that:

    “In general there is a benefit to [the child] of having a meaningful relationship with each of his parents. Despite the high level of concern I have about the mother's mental health, she does have some characteristics and capacities from which [the child] would benefit. [the child] would benefit from the mother's involvement with respect to her capacity to play with him, love him and be interested in him, give him exposure to his Country A language and heritage and to turn towards for comfort and care. However these benefits must be considered alongside the relative risks with respect to the mother's parenting capacity.”

1. The expert expressed concern about the mother’s treatment:

   “… I am therefore extremely concerned about the degree to which the mother's treatment has been effective at this time and consider that she needs a long-term course of case management and DBT treatment before there would be any consideration of her having unsupervised time with [the child]. None of that is meant to imply criticism about the mother's love for [the child] or her capacity to engage with him in a playful, appropriate and child focussed manner. It is just that currently, the mother's mental health is extremely vulnerable and presents a high level of risk for [the child] who is a young infant and is entirely dependent on the adults around him to provide for every aspect of his life.”

2. However, the expert expressed the opinion that:

   “… if the mother has continued to adhere to mental health treatment and has a long period where there have been no incidences of violence, suicidal acts or ideation, hospital admissions and/or forensic involvement, then it would be possible for her to have unsupervised contact with [the child] from the time he was at preschool age, that is after he is three years of age. At that time, I think it would be appropriate for the mother to have graduated periods of daytime contact with [the child]. If the mother continues with an appropriate treatment regime, and there have been no further incidences as described above, then I think it would be appropriate for the Court to consider more extended periods of time for [the child] to spend with his mother when he is school aged or older. Until such criteria can be met, I would not support any application for the mother to have unsupervised time with [the child].”

3.  The Single Expert’s oral evidence

1. The expert confirmed in oral evidence that the mother has a Borderline Personality Disorder and that:

   “It’s a pervasive, longstanding pattern of interpersonal relationship dysfunction.  … Its origins occur in response to childhood trauma or abuse.  The features include impulsive behaviour, erratic behaviour, a propensity to feel enormous distress if abandonment is perceived.  So typically, people with borderline personality disorder will have difficulties in relationships when they perceive the other person disagrees with them or the other person objects to some aspect of their behaviour.  Unfortunately, it’s also associated with a high degree of risk-taking behaviour, suicidal behaviour, self-injurious behaviour.  Occasionally, violent and antisocial behaviour, not as an organic response to things but in response to desperation and distress.  The theory behind borderline personality disorder is that the person doesn’t really have a very good system of emotional regulation and emotional organisation, so they do feel things very intensely and find it very difficult to have a proportionate response to stressors, and particularly perceived rejection and relationship stressors.”

   …

   “So the theory is that one never recovers from a diagnosis of borderline personality disorder.  This is a lifelong trait.  There are better managed cases … and other cases where it is unmanaged, but unlike an illness like depression which can have a pattern of recurrence and then remission, borderline personality traits or the symptoms of the disorder tend to be continuous throughout the lifespan.”

   …

   [Unfortunately] “there’s not a lot of good evidence that there’s very much effective treatment. … the gold standard treatment, would be dialectical behaviour therapy [DBT] in conjunction … [with]  a clinical psychologist [or] psychiatrist – so they’re learning a set of skills in the group about behaviour management, about limit setting, about emotional regulation, and then they’re having individual follow up to check in with how they’re using those skills, by the clinician.  But even in that scenario, the risk of those behaviours recurring is very, very high, and the literature tells us that even people who have done DBT groups for sometimes two years, sometimes three years, there is still very high rates of hospitalisation afterwards with suicidal behaviours in the course of that person’s lifespan.  So we don’t have very good treatment, but if someone is in that sort of treatment framework … they’re much more likely to be picked up quickly … their use of the skills is monitored … so they’re less likely – although, of course, not always - … to engage in the more severe aspects of the behaviours … but there’s still a propensity for it.”

2. In respect of an age when the child might be old enough that, subject to the mother being compliant with mental health treatment, it might be safe to allow unsupervised time, the expert was quite reasonably unable to provide a firm opinion.  However, she did move away from her written opinion which referred to the possibility of unsupervised time by age 3.  In her oral evidence she stated that:

   “It’s very hard to say in this case … There’s the physical safety.  I mean, obviously until children are seven, they need to be put in a car restraint, and … there’s always that risk … if there is a history of quite severe borderline personality disorder … that the parent would continue to put the child at physical risk even if you’re talking about a seven or an eight year old child.  From an emotional perspective, once children hit … depending on a whole lot of factors about that child, sort of seven or eight, they can sometimes have the emotional capacity to cope with the differences, but that would really only be in circumstances where they already had a very strong attachment history with that parent.  So I’m not competent in predicting those things.”

3. She gave an opinion that this was not a case where the Court could confidently make final orders to age 18.  However, any review of the orders would require as a pre-condition evidence the “that the mother would be willing … to do those things”, ie, have completed an extended period of treatment successfully.

4. While the volume of time with the mother in hours per week was not large, the expert considered the frequency to be more important and that this was sufficient to keep the attachment relationship alive.

5. In summary, although the mother’s condition is a persistent lifelong condition which will not be “cured” so that treatment is aimed more at controlling symptoms, the expert’s conclusion was that if the mother diligently and consistently seeks treatment with a qualified expert, such as Ms G, for a number of years without evidence of relapse or major events or issues, then at an age when the child has more self-protective capacity it be may appropriate to consider, at that time, whether some unsupervised time is appropriate.

6. The expert did not put an age on this.  The minimum age range she referred to was 7-8 years old.  That was clearly a minimum age.  It will depend upon the child’s development as well as the mother’s condition. 

4: Costs of supervision

1. The ICL proposed that the costs of regular weekly supervision, but not of supervision for special occasions, should continue to be borne equally.  The mother agreed to the overall proposal on that basis.  My understanding is that the father also ultimately consented to this. 

2. If the father had not consented the Court would have been required to consider the case on the basis of a potential no-time versus unsupervised time basis, given the uncertainty of the mother’s capacity to solely pay for supervision.  It is understood that this was the basis for the father’s concession.

3. If I am wrong about that, I find that the best interests of the child, and justice and equity, require that the parties continue to equally bear the costs of regular weekly supervision.  The mother earns about $800 net per week, of which almost half is consumed by rent and much of the rest by daily living expenses.  The mother’ mental health condition must in my view make her employment security uncertain. 

4. The father is a professional with greater and more stable earnings and earning capacity.  Balancing that out, however the father also bears the full costs of the child’s rearing. 

5. I consider time with the mother to be more important to the child than other expenses which the father has anticipated incurring for the child, including the interstate and overseas holidays which are anticipated in the father’s proposed orders and which orders will be made.

6. Accordingly, I will make orders that payment of the regularly weekly supervised time be shared equally, but that supervision for special occasions is to be paid for solely by the mother.

7. There will be provision for the parties to agree on additional occasions for supervised time.  I will not make orders as to payment for supervision in respect of such time.  Agreement as to any such additional occasions will require agreement as to who will bear the cost as part of the overall agreement.

5: Best interests of the child

1. The paramount consideration is the child’s best interests taking into consideration the factors set out in s60CC.

2. The two primary considerations, in order of weight, are the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence, and the benefits to the children of having a meaningful relationship with both parents.

3. I am comfortably satisfied that the orders proposed by the ICL achieve the appropriate balance of firstly and primarily protecting the child by having him live with the father and only allowing supervised time with the mother.

4. I am comfortably satisfied that the second consideration is met, so far as it can be, by providing the child with the benefit of such relationship with the mother as can safely be achieved and afforded through the use of supervision.  Professional supervision has proved to be a sufficient protection to date and is agreed to be appropriate and adequate by both parties and the ICL.

5. I do not consider it necessary to consider the s60C(3) additional factors in this context.

6: Independent Children’s Lawyers costs

1. The ICL made an application for costs in the total sum of $7590. 

2. The general rule is that in such a case each parent should pay one half of the costs of the ICL.  This is an important issue of public policy.

3. However, s117 of the Act requires the Court to consider the financial circumstances of the parties and there is an element of discretion.

4. In this case, noting the mother’s serious mental health issues set out above, it is relevant that while she works her wage is almost entirely expended on basic accommodation and living expenses.  She will struggle to pay for the treatment she requires and for her half of the supervision costs. 

5. The father has a better earning capacity, but due to the mother’s impecuniosity he also has to bear the full costs of raising the child and he bore the full cost of a Family Report in these proceedings and his conduct in the proceedings was nothing other than appropriate. 

6. On balance, I consider this to be one of those, very rare, cases in which it is not appropriate to order either party to make a payment in respect of the ICL’s costs. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate: 

Date:  14 January 2020