Hallinan & Wallstone

[2021] FCCA 1498

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hallinan & Wallstone [2021] FCCA 1498

File number(s):	MLC 2624 of 2020
Judgment of:	JUDGE MCNAB
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – parenting – with whom the children live and spend time – where the mother has a history of drug use – where the mother has significant and ongoing mental health issues which affect her capacity to engage in social interaction and self-management and will continue throughout her life – where the parties do not have the capacity to co-parent the children – presumption of equal shared parental responsibility displaced – best interests of the children – father to have sole parental responsibility for the children – children to live with the father – children to spend supervised time with the mother each weekend and on special occasions.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA
Number of paragraphs:	92
Date of last submission/s:	1 April 2021
Date of hearing:	31 March 2021 – 1 April 2021
Place:	Melbourne
Counsel for the Applicant:	Ms D Dwyer
Solicitor for the Applicant:	Stellan Family Law
Counsel for the Respondent:	Mr S Howe
Solicitor for the Respondent:	Hartleys Lawyers
Counsel for the Independent Children's Lawyer:	Mr C Arnold
Solicitor for the Independent Children's Lawyer:	Bowlen Dunstan and Associates Pty Ltd

ORDERS

MLC 2624 of 2020

BETWEEN:

MR HALLINAN

Applicant

AND:

MS WALLSTONE

Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	2 JULY 2021

THE COURT ORDERS THAT:

1.The Applicant Father have sole parental responsibility for the day-to-day care of X born in 2012 and Y born in 2013 (“the children”).

2.The Father is to advise the Mother of the children’s school, dental and other medical appointments and extracurricular activities.

3.The children live with the Father.

4.The Respondent Mother is to spend time and communicate with the children as follows:

(a)each weekend, from 9.00am until 6.00pm on a Saturday or Sunday as agreed between the parties and failing agreement, as decided by the relevant supervisor referred to herein;

(b)on the children’s birthdays, if they are not otherwise with the Mother, for a period of time to be agreed between the parties, and failing agreement, for a period of not less than three hours, to conclude at or before 6.00pm and to include at least one meal as determined by the relevant supervisor;

(c)on the Mother’s birthday, if they are not otherwise with the Mother, for a period of time to be agreed between the parties, and failing agreement, for a period of not less than three hours, to conclude at or before 6.00pm and to include at least one meal as determined by the relevant supervisor;

(d)on Mother’s Day, if they are not otherwise with the Mother, from 9.00am until 6.00pm;

(e)on Christmas Day in 2022, and in subsequent even-numbered years, from 9.00am until 4.00pm;

(f)by FaceTime, telephone or other video communication forum each Monday, Wednesday and Friday that the children are not otherwise in the Mother’s care from 6.00pm, with the Mother to initiate the calls and the Father to facilitate the calls; and

(g)at all other times as may be agreed between the parties.

5.If the children are to be in the care of the Mother on Father’s Day, the Mother’s time be suspended and the children remain in the care of the Father.

6.For the purposes of order 4 herein, all spend time with the Mother is to be supervised by the Maternal Grandmother, Maternal Grandfather or the Maternal Aunt.

7.For the purposes of order 4 herein, changeover is to occur:

(a)at the commencement of time at the children’s school if on a school day, with the Maternal Grandfather or other agreed supervisor to collect the children;

(b)at the commencement of time on a non-school day, at the home the Maternal Grandmother or Maternal Grandfather;

(c)at the conclusion of time at the home of the Paternal Grandparents; or

(d)at such other place and time as may be agreed between the parties.

8.Each party must notify the other party of any change in their residential address, telephone number or email address within 48 hours of any such change.

9.The Mother be permitted to liaise with the children’s school to obtain information about the children’s progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parents at their own expense, and the Mother is to provide a copy of these orders to the school as authority for the same.

10.The Mother be at liberty to attend any significant school or extra-curricular activity to which parents are ordinarily invited.

11.In the event a passport is required for either of the children, the Father is to provide the application form to the Mother and the Mother is to sign all documents and do all things necessary for the issuing of a passport or passports.

Injunctions and Restraints

12.For 24 hours immediately prior to the commencement of any spend time with the children (including any period during which the children live with the Father), and during all such spend time, the parties be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol (having a BAC above 0.05%) or any legal or illegal drug or substance, save and except for:

(a)any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

13.Both parties, their servants and agents be and are hereby restrained by injunction from:

(a)physically disciplining or threatening to physically discipline the children;

(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other party and their families to or in the presence or hearing of the children or any of them and from permitting any other person to do so,

(c)discussing these proceedings, parenting disputes and/or issues to or in the presence or hearing of the children or any of them and from permitting any other person to do so,

(d)passing messages through the children; and

(e)exposing the children to any conflict between the parties with or in the presence or hearing of the children.

Dispute Resolution

14.The Parties agree to review these orders at community-based mediation:

(a)within 30 days of a dispute arising from these orders that cannot be resolved through respectful communication via text message; and

(b)upon the Mother providing proof of her successful completion of a recognised drug rehabilitation program.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Judge McNab:

INTRODUCTION

1. In this matter the Applicant Father is 39 years old and works as a professional. The Respondent Mother is 33 years old and is a Homemaker. 

2. The parties met in 2007 and commenced a relationship soon after. The parties commenced cohabitation in 2008.

3. In 2012, the first child X was born. In 2013, the second child Y was born.

4. In 2016, the parties were married.

5. From the case summary material, there is a dispute as to when there was final separation. The Father says in his case summary document filed on 29 March 2021 that the parties separated in or around September 2019, when the Mother moved out of the matrimonial home to live with Mr B. The Mother says in her case summary document filed on 29 March 2021 that she moved out of the matrimonial home with the children in December 2019 and commenced living with the Maternal Grandmother, Ms C. The Mother says that the parties continued seeing each other after she left the matrimonial home, including maintaining a sexual relationship, but separated on a final basis on 2 March 2020. The decision of the Court does not turn on this dispute.

   BACKGROUND

6. The Father filed an initiating application seeking final parenting orders on 10 March 2020. The Mother filed her response on 4 May 2020.

7. On 5 May 2020, Registrar Hayward made orders for a s11F child inclusive conference to take place. On 1 July 2020, a s11F Memorandum prepared by Family Consultant D was provided to the Court.

8. On 6 July 2020, orders were made by the Court for the parties to have equal shared parental responsibility for the children, for the children to live with the Father, and for the children to spend supervised time with the Mother as follows:

   (1)by video calls on Monday, Wednesday and Friday evenings at 6.00pm with the calls to be initiated by the Mother and facilitated by the Father; and

   (2)each weekend for a period of four hours on either a Saturday or a Sunday as agreed between the parties and the supervisor, and failing agreement as nominated by the supervisor.

9. Each party was to also complete a post-separation parenting course, and the Mother was to undergo a random, supervised urine or blood screen within 24 hours of the Father’s solicitors making a request for the same. The matter was also adjourned to 10 September 2020 for Directions.

10. On 10 September 2020, orders were made for the children to be enrolled at Suburb E Primary School for the 2021 school year and for the parties (and their agents) to be restrained from physically disciplining the children, denigrating the other party and from discussing these proceedings with or in front of the children. Orders were also made for an Independent Children’s Lawyer to be appointed and for the parties to attend upon a Family Consultant for the purpose of preparing a family report. The matter was adjourned to 7 December 2020 for further Directions and was adjourned to 31 March 2021 for Final Hearing.

11. On 7 December 2020, orders were made for the Mother to spend supervised time with the children for five hours on Christmas Day and for the Mother to attend upon Dr F for a psychiatric assessment on 26 February 2021, with that assessment to be funded by Victoria Legal Aid. Orders were also made for the Father to undertake a psychological assessment. The orders of 6 July 2020 were also varied so that the Independent Children’s Lawyer could request that the Mother undertake a random, supervised urine or blood screen.

12. On 23 February 2021, a family report prepared by Family Consultant G was provided to the Court.

13. On 10 March 2021, the Father filed an amended initiating application for final parenting orders. The Mother filed an amended response on 17 March 2021.

14. The matter came before the Court on 31 March 2021 for Final Hearing. All parties had Counsel appear on their behalf. At the conclusion of the hearing, judgment was reserved.

    ORDERS SOUGHT

    The Father’s Proposed Orders

15. By way of his case summary document filed on 29 March 2021, the Father seeks that he have sole parental responsibility for the children, with him to advise the Mother of the children’s school, dental and other medical appointments and extracurricular activities. The Father seeks that the children live with him.

16. The Father seeks orders that the Mother spend supervised time and communicate with the children as follows:

    (1)each weekend from 9.00am to 6.00pm on a Saturday or Sunday as agreed between the parties and failing agreement, as decided by the supervisor;

    (2)by FaceTime, telephone or other video calls each Monday, Wednesday and Friday when the children are not otherwise in her care, at 6.00pm;

    (3)on the children’s birthday’s for a period of no less than three hours, to include at least one meal;

    (4)on the Mother’s birthday for a period of not less than three hours, to include at least meal;

    (5)on Mother’s Day from 9.00am until 6.00pm;

    (6)on Christmas Day in 2022 (and in subsequent even-number years) from 9.00am  until 4.00pm; and

    (7)at all other times as may be agreed from time to time.

17. The Father seeks that the Mother’s time be suspended on Father’s Day.

18. The Father also seeks orders that neither party take illicit substances at any time, as well as the standard non-denigration restraints be imposed on the parties.

    The Mother’s Proposed Orders

19. By her case summary document filed on 29 March 2021, the Mother seeks that the parties have equal shared parental responsibility for the children and for the children to live with the Father. In relation to spend time, the Mother seeks the following orders:

    a. During the school term on a graduating basis as follows:

    i. On each Saturday and Sunday, from 10.00am to 6.00pm for a period of 3 occasions;

    ii. After a period of 3 occasions, each weekend from 10.00am on Saturday to 6.00pm on Sunday for a period of 3 occasions;

    iii. After a period of 3 occasions, each weekend from the end of school (or 3.30pm if a non-school day) on Friday until 6.00pm on the Sunday for a period of 3 occasions; and

    iv. After a period of 3 occasions, each weekend, from the end of school (or 3.30pm if a non-school day) on Friday until the commencement of school on Monday (or 9am if a non-school day).

    b. Otherwise as follows:

    i. on each of the Children’s birthday, if the Children are not in the care of the Mother, from the conclusion of school (or 3.30 pm if a non-school day) until 8.00 pm should the birthday fall on a weekday;

    ii. on the Mother’s birthday, if the Children are not otherwise in the care of the Mother, from the conclusion of school (or 3.30 pm if a non-school day) until 8.00 pm should the birthday fall on a weekday;

    iii. During Christmas, if the Children are not already in the care of the Mother, from 5pm on Christmas Eve to 11.00am on Christmas day in years ending in an odd number and from 11.00 am until 8pm on Christmas Day in years ending in an even number; and

    iv. During Easter, on Easter Sunday, if the Children are not already in the care of the Mother, from 9.00am until 6.00pm.

    c. For half of each of the short school holidays, as agreed between the parties in writing, and in default of agreement as follows:

    i. from the conclusion of school on the first Friday of the school term holidays (or 10.00 am if a non-school day) until 5.00 pm of the next Friday of the school term holidays in 2021 and in each alternate year thereafter; and

    ii. from 5.00 pm on the second Friday of each of the school term holidays until 5.00 pm on the next Friday of each of the school term holidays in 2022 and in each alternate year thereafter

    d. For half of the long school holidays on a week about basis to be agreed between the parties, and failing agreement as follows:

    i. commencing 2021 and in each alternate year thereafter, from the conclusion of school prior to the long school holidays until the Friday of the first week of the long school holidays at 3pm and in each alternate week thereafter; and

    ii. commencing 2022 and in each alternate year thereafter, from the Friday of the first week of the long school holidays at 3.30pm until the next Friday at 3.30pm and in each alternate week thereafter.

20. The Mother also seeks that her time with the children be suspended as follows:

    a. On each Father’s Day, from the conclusion of school (or 3.30 pm if a non-school day) on Friday until the commencement of school or day care (or 10.00 am if a non-school day) on Monday;

    b. on each of the Children’s birthday, if the Children are not in the care of the Father, from 9.00 am until 2.00 pm should the birthday fall on a weekend;

    c. on the Father’s birthday, if the Children are not in the care of the Wife from 9.00 am until 6.00 pm should the birthday fall on a weekend;

    d. During Easter, from 9.00 am until 6.00 pm on Easter Saturday;

    e. During Christmas, if the Children are not in the care of the Wife, from 9.00 am until 8pm on Christmas Day;

    f. At such further or other times as may be agreed between the parties in writing.

21. The Mother seeks that, until she obtains and maintains appropriate accommodation (being accommodation with a bedroom for her, and a separate bedroom for the children), any overnight time between the Mother and the children occur at the Maternal Grandmother’s home unless otherwise agreed between the parties in writing.

22. The Mother also seeks that:

    (1)the parties be able to call the children whilst in the care of the other party;

    (2)the parties be able to attend any significant kindergarten, school or extra-curricular activity to which parents are ordinarily invited; and

    (3)the parties and their agents be restrained from denigrating the other party to, in front of, and within the hearing of, the children

    The Independent Children’s Lawyer’s Proposed Orders

23. In a case summary document filed on 29 March 2021, the Independent Children’s Lawyer stated at page 9 that:

    It is noted that the Mother has not completed a psychiatric assessment as ordered. In those circumstances it is difficult for the Independent Children’s Lawyer to recommend an increase to the Mother’s time as recommended without the assessment.

24. In the course of the Final Hearing, Counsel for the Independent Children’s Lawyer indicated that they would support an order for the children to spend supervised time with the Mother from 9.00am until 6.00pm on either Saturday or Sunday each week.

    THE EVIDENCE

    The Father’s Evidence

25. The Father sought to rely on his affidavits filed on 29 June 2020, 1 September 2020, 10 March 2021 and 23 March 2021. The Father also sought to rely on affidavits filed by the Paternal Grandmother, Ms H, on 10 March 2020 and 11 March 2021, and an affidavit of his brother, Mr J, filed on 18 September 2020.

26. The Father relied primarily on his affidavit filed on 10 March 2021. That affidavit outlines the difficulties faced by the Father and the Mother in facilitating spend time arrangements during the COVID-19 lockdown and in circumstances where the Mother was homeless. He states that when orders for supervised time were made in July 2020 the time began alternating between his home and that of Ms K, the Maternal Aunt.

27. The Father’s affidavit details the Mother’s vitriolic and abusive communications via text message to him. At [58] – [66] of his affidavit the Father deposes that the Mother's drug use is long-standing as evidenced by a number of requests for drug tests to be done, which were refused by the Mother. The Mother was asked to undertake a drug test by the Independent Children’s Lawyer on 28 January 2021 and the test results were positive for amphetamine and cannabis. The positive test result came only a number of days after the interviews were conducted for the family report.

28. In relation to the Mother’s mental health, the Father states that the Mother's mental health issues involve suicidal and homicidal thoughts and that in early February 2020 the Mother was taken by Victoria Police to Region L Health after threatening to jump off a bridge near the Paternal Grandparents’ home. The Father's affidavit describes erratic and concerning behaviour on the part of the Mother, both in relation to him and in relation to her interactions with the police.

1. The Father’s affidavit describes that the children are in good health and doing well at school, notwithstanding the difficulties caused by COVID-19.

2. The Father’s affidavit also refers to a degree of tension between himself and the Maternal Grandmother. He describes her as controlling and having a very negative attitude towards him. 

3. The Father was present at Court and was cross-examined during the course of the Final Hearing. The Father presented as a calm and thoughtful person and he was at pains not to be overly critical of the Mother. In the course of his evidence, the Father stated that he was happy for there to be joint parental responsibility. However, in the course of giving further evidence, and being asked questions by Counsel, it was apparent that he did not understand what parental responsibility actually means and I do not place significant weight on his view that he is happy for the parties to have joint parental responsibility. The Father gave every impression of being focused on the children and was concerned to bring this application for the safety and best interests of the children.

   The Mother’s Evidence

4. The Mother sought to rely on her affidavits filed on 4 May 2020, 3 July 2020, 3 September 2020 and 16 March 2021.

5. The Mother relied primarily on her trial affidavit filed on 16 March 2021. In her affidavit, the Mother describes her difficulties associated with spending time with the children during the COVID-19 period and because of her lack of stable accommodation. It is apparent that she does not get along well with the Father or the Paternal Grandparents, and resents what she sees as the control that was exercised over her time with the children. Paragraphs [57] – [70] of the Mother’s affidavit describes that she has concerns in relation to the children's health, in particular, their dental health (which is a matter the Father says the Mother is obsessed about). The Mother is concerned about the Father's continuing parenting of the children and that she is being undermined by the current arrangements.

6. In relation to her mental health, the Mother states that she has been diagnosed with Borderline Personality Disorder (“BPD”), Post-Traumatic Stress Disorder and Depression. The Mother is currently in receipt of National Disability Insurance Scheme monies and has been engaging with a caseworker, Mr M. Mr M wrote a letter of support which is dated 15 March 2021 and is annexure -2 to the Mother’s affidavit. In that letter, Mr M states that when he met the Mother she was staying in temporary accommodation in the COVID-19 hotel system organised through N Charity and goes on to note that the Mother subsequently obtained stable accommodation in Suburb O. Mr M states that consistent access to the children has a positive effect on the Mother’s BPD and supports the Mother spending more time with the children. Mr M did not give evidence at the hearing and there is no evidence before the Court as to his qualifications.

7. At [79] of her affidavit, the Mother notes that:

   79. [..] my impulse control has been and continues to be, an issue for me, often leading me to write a large amount of text messages in quick succession when upset. These text messages rarely reflect my true feelings once I have calmed down. I note that these text messages are often directed towards the Father.

8. In relation to her drug use, the Mother states that, in the past, she used drugs to manage her mental health and as a coping mechanism. She states that she is actively working towards dealing with the issues which lead to her use of drugs, and states that she has never used drugs in front of the children or in a place that was accessible to them.

9. In relation to her current living arrangements, the Mother states that just prior to the Court date on 5 May 2020 she had moved in P House, where she resided until in or around October 2020. She left P House and was homeless for a period, staying at various friends’ houses and at a hotel on Q Street which was organised by N Charity. She deposes that on 31 December 2020 she moved into a private rental property, which was supported by N Charity and she currently resides there.

10. In the course of giving evidence at the Final Hearing, the Mother’s evidence was characterised by loud and unmoderated speech, almost to the point of shouting. She spoke incredibly quickly and with a highly pressured tone, in particular, when challenged about specific events by Counsel and the Court. She presented as having very little insight into her conduct, her use of drugs and the effect of her unfiltered and voluble presentation, in particular, the effect of that behaviour on the children.

    The Maternal Grandmother’s Evidence

11. The Mother also called the Maternal Grandmother to give evidence on her behalf, who relied on her affidavit filed on 4 May 2020. She impressed as a person who was supportive of the Mother, including through the trouble that the Mother has had since childhood and throughout her life. The Paternal Grandmother also has the care of an adult son with significant difficulties. She recognised the Mother’s difficulties with her mental health and drug use and gave evidence that the Mother should be more involved with the children and that she would support the Mother.

    The Family Consultants’ Evidence

12. A s11F child inclusive conference was conducted by telephone in relation to child safety and well-being. As a result of the conference, a s11F memorandum was prepared by Family Consultant D and is dated 1 July 2020. In that memorandum, Family Consultant D referred to the s67Z response dated 18 May 2020 which noted that there were eight previous reports received by the Department of Health and Human Services (“DHHS”) in relation to the parties and the children between 2013 and 2019. One of those reports progressed to a protection order, one report progressed to an investigation without substantiation and all other reports were closed at intake.  It was noted that all previous reports to DHHS relate to the Mother's alleged drug use, mental health (where she presented as erratic and paranoid), the Mother making threats against the Father and the Mother alleging that she and Y have been exposed to sexual abuse in the past.

13. Family Consultant D stated at [21] of the memorandum that:

    21. The Mother presented as somewhat contradictory throughout the assessment, at times acknowledging difficulties with her mental health and drug use and other times denying them.  Her overall presentation gave cause for concern regarding her current mental state given the tangential nature of her communication, inconsistent accounts of past documented involvement with DHHS, the continued denigration of the Father and accusations of him being “a rapist”, and the rate and tone of her speech throughout the assessment.  Of further concern was the maternal grandmother’s involvement in the assessment and the Mother’s failure to disclose that at the commencement of the interview.  It was noticed by the writer that the Mother would refer to the maternal grandmother to respond to a number of the questions posed to her.

14. Family Consultant D recommended at [36] – [38] of the memorandum that:

    36. […] X and Y live with the Father.

    37. Although the Mother reported being engaged with a service to address and manage her mental health and illicit drug use, she is currently in the early stages of the recovery process.  With this in mind it would be beneficial for time spend arrangements between her and the children to occur in a neutral environment and be supervised, by a professional service, with a report of the quality of the interaction between them being made available to the Court. 

    38. Time spend arrangements for X, Y and their Mother occur for up to four hours on either Saturday or Sunday each week, as agreed between the parties.  That the Mother communicate with the children via face time on Monday, Wednesday and Friday for no more than 15 minutes.

15. Family Consultant G was called by the Independent Children’s Lawyer to give evidence in relation to the family report dated 23 February 2021.

16. Family Consultant G states at [158] of the family report that the relationship between the parties was characterised by out-of-control behaviours on the part of the Mother and controlling behaviours on the part of the Father. Family Consultant G goes on to states that:

    158. […] Recursively, it is likely they each contributed to the very behaviours they did not want in the other. During periods of conflict, they engaged in a symmetrical escalation of their respective behaviours to the extent that one or the other would leave the family home.

17. At [162] of the family report, Family Consultant G describes the Mother as follows:

    162. [The Mother] presents as a distressed, angry, fast spoken woman who feels victimised by [the Father] and the legal system and uses expletives routinely during conversation. She struggled to contain her frustration during the interview and is clearly distressed at being denied any involvement or decision-making regarding the children. The extent to which her disability is a determinate of her behaviour is unknown and could only be identified by a neuropsychological assessment. She appears to lack insight into the manner in which her behaviour towards others could invite a negative response.

18. Family Consultant G goes on to describe the Father as a “pleasant man who was cooperative with the Report process”, who felt compelled to withhold the children as a protective measure when the Mother engaged in drug induced conflict with the Maternal Grandmother. However, Family Consultant G states at [168] – [170] that:

    168. […] The children's information supports the understanding that [the Father] had, and continues to have little involvement in their lives, leaving this initially to Ms Wallstone and post separation to the paternal grandmother while he plays video-games.

    169. He understandably required the children to initially spend time with their Mother on a supervised basis, however refused to acknowledge the maternal grandmother to be a suitable supervisor and insisted the supervision occurs at his own home where he was available as a protective measure. This will have impacted negatively upon the children's time with their Mother; is likely to have exposed them to conflict from time to time and may support Ms Wallstone's contention that he is controlling.

    170. It would seem that he was content to leave the major responsibility for the children's parenting to Ms Wallstone, supported by her Mother, and more recently to his own Mother who, it seems, has assumed a primary role throughout the Covid-19 lock down period. His capacity to parent the children independently is yet to be tested by time. […]

19. Family Consultant G summarises the views of the children at [179] of the family report, stating the children seem to have been appropriately cared for and raised by the parties up to now, with the majority of the credit reportedly going to the Mother and the Maternal Grandmother. The Family Consultant goes on to say at [179] that:

    [179] […] Post separation, [the children] are now required to live with an emotionally uncontained, but involved Mother, or a yet to be proven uninvolved Father. Both parents are likely to require supplementary parenting at times.

20. Family Consultant G says that, as the Mother does not have adequate resources to provide the children with suitable accommodation and/or to transport them to and from school, the mid-week care of the children must be with the Father, supported by the Paternal Grandmother. On that basis, the children’s time with the Mother should be limited to the weekends, supported by the Maternal Grandmother, who should be in substantial attendance whilst the children are spending time with the Mother.

21. At [182] of the family report, Family Consultant G makes recommendations as follows:

    •That the parents have shared parental responsibility for their children's ongoing care, welfare and development.

    •That the parents be required to attend upon a Relationship Centre once per school term to discuss and negotiate their children's needs and activities.

    •That the children live primarily with their Father.

    •That the children spend time with their Mother from the completion of school Friday to the commencement of school Monday each and every weekend to be conditional upon this occurring at the home of, and in the substantial presence of, the maternal grandmother.

    •That the parents be required to negotiate the children's school holiday time with each of their parents a minimum of six weeks prior to each holiday period. In the event the Mother and maternal grandmother are able to offer time with their Mother at the home of, and in the substantial presence of, the maternal grandmother, that this can be for up to alternate weeks.

    •That the special days be shared equally between the parents.

    •That the Mother is to do all things possible to engage in therapeutic treatment to assist in continuing to remain free of the substance Ice, and increasing her frustration tolerance level.

    •That both parents be required to complete a Parenting Orders Program.

    •That both parents be required to complete a Triple P Parenting Program.

    •That the Father be required to attend upon an appropriate psychologist to differentiate and deal with his own emotions as separate from the children's.

    The Neuropsychological Assessment

22. A neuropsychological report of the Mother prepared by Ms R, Senior Clinical Neuropsychologist, and dated 4 December 2019, was admitted into evidence as Exhibit ICL-1.

23. One the most significant features of this case is the Mother's mental health condition which, in Ms R’s view as set out below, is likely to be ongoing and has significantly affected the Mother's capacity for social and economic participation. An extract of Ms R's report summarising the Mother's condition provides "Ms Wallstone is a 31-year-old woman who has likely sustained a brain injury as a child of uncertain severity and who has a long-standing, very significant mental health issues". In my view those mental health issues significantly affect the Mother’s capacity to parent.

24. At page four to five of the report, under the heading ‘Summary and recommendations’, Ms R states that:

    On testing Ms Wallstone did have an impairment in attention with more difficulty focussing on, taking in and mentally manipulating information than other people her age. Her speed of thinking was also mildly impaired. On the positive side, Ms Wallstone's strengths were reasoning skills, generating ideas and memory for new information (especially where it was repeated or she didn't have to first understand the meaning of what was being said). Here her results were similar to other people. The other positive was that her results were very similar to those from 2006, i.e. there had been no change in Ms Wallstone's cognition over time. In conversation and on the personality and psychological symptoms questionnaires she described very high levels of distress predominantly focussed outwards. Her answers suggest she is likely to interpret situations differently to other people and describe things emotively. These results are consistent with the diagnoses Ms Wallstone has previously been given (i.e. they are still applicable), including depression and [Bipolar Disorder].

25. Ms R goes on to state that a major barrier in the Mother’s life are her mental health issues, and although she had a variety of interventions in the past, the Mother would benefit from further input, such as by mental health services. Ms R suggests that a functional based approach might work best for the Mother, being an approach that focuses on positive practical tasks and activities which can help to provide a sense of meaning and self-worth.

26. Ms R goes on to summarise the impairments in the Mother’s daily life, primarily as result of her mental health condition, as follows:

    •Social interaction - Ms Wallstone can be friendly and sociable in specific situations. She is suspicious and wary of other people, making relationships very difficult. She has some very conflictual relationships including with close family and intimate partners. She can have explosive anger episodes and can be confronting in her manner.

    •Self-management- Ms Wallstone's mood and relationships impact on her ability to meet her obligations and reactions to situations, including the legal system· and being able to organise her and her family's life and engage in employment. Her decision making is affected by her views on life and tendency to expect the worst. She has the underlying cognitive skills to manage daily tasks but mood and drug use impacts on how effectively she is able to deploy these resources.

    •Self-care - Independent in basic self-care. Again her mood is likely to impact on self-care in terms of risk taking and self-harm.

    •Communication - Ms Wallstone is able to explain and converse when she is calm and not talking about an emotive issue. However she gets frustrated and explains things in emotional or aggressive ways. She often interprets other people's intentions negatively and tries to avoid being hurt by attacking first.

    •Learning - Ms Wallstone's reduced attention and speed of thinking can mean it is hard to take things in, especially in busy, noisy environments or where there are large amounts of information. It will help to have information repeated and reduce distractions. Small groups or one-on-one will probably be better for Ms Wallstone. The problems with attention are likely to be exacerbated when she is angry or drug affected.

    •Mobility - No problems.

27. Ms R concludes her report by indicating that the Mother’s mental health condition is lifelong, likely to be ongoing and has significantly affected the Mother’s capacity for social and economic participation.

    The Psychiatric Assessment

28. Pursuant to orders of the Court made on 7 December 2020, Dr F, Psychiatrist, filed an affidavit in this matter, which annexures a brief psychiatric report in respect of a partial assessment of the Mother.

29. By that report, Dr F notes that it was not possible for him to offer an opinion as to the Mother’s mental health, as she left the assessment before the history could be completed.

30. Dr F was able to set out that the Mother informed him that she had a history of multiple psychiatric admissions, with the first having occurred when she was 18 years old, but she could not recall the exact number. Dr F states that the Mother insisted that all of her admissions were inappropriate and that she was entirely ‘sane’. She told Dr F that her admissions occurred because they were beneficial to various third parties, for example the Father and, on the first occasion, the police who “she insists assaulted her resulting the death of her fetus.”

31. Dr F reports that the Mother told him that, at the age of two, she sustained a significant head injury and believes that she suffers from a traumatic brain injury, which she said had never been assessed.

32. Dr F concludes his report by stating:

    Ideally a neuropsychiatric should be considered but given Ms Wallstone’s presentation today she is unlikely to cooperate. At the assessment today she was agitated, disinhibited and irascible.

    CONSIDERATION

    Statutory Considerations

33. In making a parenting order, pursuant to s64B of the Family Law Act 1975 (Cth) (“the Act”), the Court must regard the children’s best interests as the paramount consideration: see s60CA and s65AA of the Act. Accordingly, I must consider the factors in s60CC to determine what is in the children’s best interests.

34. This analysis will enable me to determine whether the presumption of equal shared parental responsibility is maintained consistent with s61DA of the Act.

    Equal Shared Parental Responsibility

35. Section 61DA(1) of the Act provides that, when making a parenting order in relation to the children, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for them.

1. However, s61DA(2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the children (or a person who lives with a parent of the children) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b) family violence.

2. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children or the children's parents, for the parties to have equal shared parental responsibility for the children.

3. This is a case where the presumption of equal shared parental responsibility is displaced.

4. Having heard the parties give evidence and considering all of the material before the Court, including the medical evidence and the family report, I am of the view that is in the best interests of the children that the Father have sole parental responsibility for them.

5. I have regard to the Mother’s longstanding mental health issues set out in Ms R’s report, including her commentary on the difficulties the Mother has with social interaction and self-management. The Mother does not and cannot get along with the Father or his family and I find that this stems from the Mother’s health issues, rather than any issues posed by the Father.

6. The Mother’s historical and continued drug use, unstable housing situation and highly negative attitudes towards the Father, who has the primary care of the children, means that there are good reasons why the Father should exercise sole parental responsibility for the children, but keep the Mother informed of all major decisions. This is not to suggest the Mother does not wish to care for the children or that she is wilfully neglectful or intending to put the children in a situation of potential harm. The Mother has significant health issues which are likely to continue for the rest of her life and the children’s best interests are served by the Father being in a position to make decisions about their health, education and other long-term matters. 

   Children’s Best Interests

7. By operation of s60CA of the Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.

   Primary Considerations

8. In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:

   s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;

9. The orders as proposed by the Father and the Independent Children's Lawyer provide an opportunity for the children to have a meaningful relationship with both of the parties, subject to the constraints imposed by the Mother’s mental health condition.

   s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

10. The Mother’s mental health, her impulsivity and her incapacity to moderate her views and behaviours means that the children's time with her should be supervised by a third party in order to protect them from physical or psychological harm. The orders that will be made provide for this to happen.

    Secondary Considerations

11. In terms of dealing with the matters that I must have regard to under s60CC(3) of the Act, to the extent that I have not already done so, I have regard to the following relevant considerations:

    s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;

12. It is plain that both children clearly love both of their parents. However there is a sense from the family report that the children are aware the Mother is not well although she loves them.  Neither child expressed the view that they should not live with the Father.

    s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);

13. Both children have a relationship with each of the parties, although the relationship between the children and the Mother has been strained by the Mother's circumstances, in particular, the fact that she has previously not had stable accommodation.

    s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;

14. It seems that the parties somehow managed to make decisions regarding the children prior to the conclusion of the relationship. The majority of the decisions about long-term matters fell to the Father, with the assistance of the Paternal Grandparents and also with the assistance of the Maternal Grandmother. The Mother has tried to spend as much time as possible with the children and there is evidence she communicates with them.  However, there is evidence that the Mother has left spend time events with the children early and she says this is because of difficulties with supervisors.  It does appear that the Mother’s arrangements (and her capacity to make arrangements) have been erratic and she has not seen as much of the children as she might have.

    s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

15. It appears that the Mother’s mental health issues have imposed a limitation on her capacity to fulfil her obligations to maintain the children. I do note that she has done what she can to spend time with the children in difficult circumstances. The Family Consultant expressed some negative views in relation to the Father’s engagement with the children, as set out above.

    s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

16. The proposed orders provide for a continuation of the status quo in this matter, subject to some minor modification.  It is not apparent that there will be any serious issues arising for the children, in particular, given that they appear to be healthy and doing well at school. It was said by Counsel for the Mother that the children are lovely young people, which is good to hear, given that they have not had an easy ride in life so far.

    s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

17. There is no particular practical difficulty or expense that will arise from the children spending time and communicating with the Mother pursuant to the proposed orders, given that the nature of the orders the Court proposes to make are in line with the recommendations of the Independent Children's Lawyer.

    s 60CC(3)(f) – the capacity of:  (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

18. As set out at length above, the Mother has mental health issues significantly affect her capacity to provide for all of the needs of the children, including their emotional and intellectual needs. This is not because she does not want to provide for the children, but instead because her mental health issues have affected, and continue to affect, her capacity to prioritise the children.

19. The Mother’s continued use of drugs, including crystal methamphetamine, until apparently a short time prior to the Final Hearing, is a matter of grave concern in relation to her capacity to provide for the children. The fact that that the Mother prematurely left a psychiatric assessment with Dr F, who is an experience practitioner, did not assist the parties or the Court, and fortifies the Court’s view about the appropriateness of the orders that will be made.

20. The Father was the subject of some criticism by the Family Consultant, as it was reported by X that the Father spends an inordinate amount of time on computer games and his mobile devices. This was denied by the Father and his responses to questions during cross-examination were not suggestive of a person who did not care about the children or that he was more interested in playing computer games or being on his mobile devices.

    s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

21. This is set out above.

    s60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

22. This is not a relevant consideration in this matter.

    s60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

23. This is set out above.

    s60CC(3)(j) – any family violence involving the child or a member of the child's family;

24. There have been allegations of family violence perpetuated by the Mother towards the Father and also by the Father towards the Mother.  There is no evidence that substantiates any of the allegations that the Mother makes about the Father's conduct.  On the other hand, the Mother's lack of control or incapacity to control herself has caused the Mother to present herself as a serious risk to the children, such that the Court is of the view that it is appropriate that the Mother spend supervised time with the children.

    s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;

25. In February 2019, a Family Violence Intervention Order was made against the Mother with Victoria Police as the applicant. The Mother was pulled over whilst the children were in the car. She then assaulted one of the Police Officers who pulled her over and ran into traffic, whilst leaving the children in the car. The children were named as the protected persons on the order.

26. By way of her case summary document filed on 29 March 2021, the Mother says that the application for the intervention order was made in error, the order was meant to be dismissed but was not and has since lapsed.

    s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

27. In my view, the orders that will be made are those most likely to lead to a reduction of the risk of further proceedings being issued.

    s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

28. There are no further circumstances which are relevant to the determination of this matter.

    CONCLUSION

29. For these reasons, I will adopt the orders, subject to modification, proposed by the Father and the Independent Children’s Lawyer.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       2 July 2021