HALLUM & WALSTON (No.2)
[2020] FCCA 13
•23 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALLUM & WALSTON (No.2) | [2020] FCCA 13 |
| Catchwords: FAMILY LAW – Parenting – whether there is a risk of harm to child if time with mother is unsupervised. |
| Legislation: Evidence Act 1995 (NSW), s.128 |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR HALLUM |
| Respondent: | MS WALSTON |
| File Number: | WOC 762 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 16 – 18 September 2019 18 – 19 November 2019 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Wollongong via AAPT teleconference |
| Delivered on: | 23 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Humphreys |
| Solicitors for the Applicant: | Five Islands Legal |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Dignan and Hanrahan Solicitors and Attorneys |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Stanford Solicitors & Mediators |
ORDERS
The Father shall have sole parental responsibility for the child X born in 2010 (“the Child”).
The Child shall live with the Father.
Commencing from the date of these Orders and until he is 12 years of age in 2022, the Child shall spend supervised time with the Mother as follows:
(a)Each alternate Sunday from 10:00am until 2:00pm;
(b)On Christmas Day from 12:00pm until 4:00pm;
(c)On Mother’s Day from 12:00pm until 4:00pm; and
(d)At other time as agreed between the parties in writing.
The supervisors set out in Order 3 shall be the Father and/or his nominee or nominees.
For the purposes of changeover the parties shall meet at City A Park.
The Mother do all things necessary to ensure that Mr B is restrained by injunction from consuming alcohol or any illicit substance while the Child is in their care or for a period of 24 hours prior to the Child coming into their care.
The Father will continue to facilitate the Child’s attendance upon his treating medical practitioners and health professionals.
The Mother shall continue to regularly engage with and follow the directives of her treating medical and mental health professionals.
The Father shall ensure that he keeps the Mother informed as soon as it is reasonably practical of:
(a)Any medical problems or illnesses suffered by the Child whilst in each parent’s care;
(b)Any medications that have been prescribed for the Child;
(c)Any specialist medical appointments;
(d)Any significant social, school or religious functions which the Child is to attend;
(e)The details of any sporting body(ies) that the Child is involved in;
(f)His residential address and particulars of others who may reside with the Child;
(g)Any other important matter relevant to the welfare of the Child.
The Father shall provide to the Mother full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the Child.
Each parent is entitled to attend all events involving the Child including, but not limited to:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for each parent attendance or participation; and
(c)School functions and events that allow for parental attendance or participation.
Both parents be permitted to liaise directly with the Child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Child’s progress.
In event that either party changes their accommodation, they shall provide the other party with details of their new address as soon as practicable, but no later than 48 hours after moving into a new premises.
IT IS NOTED that publication of this judgment under the pseudonym Hallum & Walston (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 762 of 2017
| MR HALLUM |
Applicant
And
| MS WALSTON |
Respondent
REASONS FOR JUDGMENT
Introduction[1]
[1] Unless indicated to the contrary, the following represents findings of the Court having regard to all the evidence.
This case is about X, who is 10 years old. X lives with his father and spends time with his mother. This case is about how much time X spends with his mother, and the Reasons for Judgment set out below explain the Orders the Court has made in this regard.
X’s father is the Applicant in this case. He is 27 years old, describes himself as an apprentice tradesman and lives in the Region C of New South Wales. X’s mother is the Respondent. She is 25 years old and lives in the Region D of New South Wales. The parents commenced a relationship in 2009, when they were both very young. X was born shortly thereafter. The relationship between the parents was a turbulent one.
In 2012 the Mother unfortunately suffered a sexual assault at her place of employment. It would seem that this tragic event eventually resulted, or substantially contributed to, the Mother being later diagnosed with bi-polar disorder and post-natal depression. The relationship between the parents broke down later in 2012. The Mother eventually received a lump sum payment of $190,000 as compensation for the sexual assault that she suffered. In 2014, when X was about 4 years old, the Mother moved to Town E, and the Father appears to have been working in Western Australia.
She then returned to the Region C area and appears to have entered into the first of a series of three violent relationships with different men. The first such relationship was with Mr F which the Mother herself described as “abusive and controlling”. Mr F assaulted the Mother several times, she obtained an AVO for her protection, and the Mother’s relationship with him eventually ended with the Mother and X moving to live with her sister, Ms G.
In 2013 the Mother entered into a relationship with Mr H. She fell pregnant to him, and eventually gave birth to their daughter J who was born in 2014. On the mother’s own evidence, Mr H assaulted her at a train station when she was seven months pregnant with J. He was eventually jailed for three months in respect of the family violence.
According to the Mother’s own evidence, after J was born the Mother suffered post-natal depression and has started using ice. In 2015 the Mother suffered an unfortunate motor vehicle accident as a back-seat passenger in which she was severely injured, including a severe traumatic brain injury.
By late 2015 the Father had returned to the Region C area as had the Mother. She and X were living with the Mother’s sister, Ms G. In 2016 the Father entered into a relationship with his current partner, Ms K. They continue to live together. The Mother formed a relationship with her current partner, Mr B. They married in 2016. The Father and his partner gave birth to their first child, M, in 2016.
On 11 March 2017, and based on what the Mother told Dr N, the Chapter 15 Single Joint Expert in this case, she jumped out of a moving car and broke her shoulder. The car was being driven by her partner, Mr B and the Mother reported that she did this because she was feeling upset at the time and felt that she was not a good mother.
The Mother was admitted to O Hospital Mental Health ward in July 2017 following an overdose of her prescription medication. It would seem that it was about this time that the Mother raised with the Father and his partner the prospect of X going into the Father’s care. The present proceedings commenced at about that time. On 24 July 2017 an Order was made for X to spend time with his father each weekend from 5:00pm Friday to 5:00pm Sunday, and the Mother was restrained from bringing X into contact with her partner, Mr B. By 18 August 2017, however, the Court ordered X to live with his father and spend time with his mother each alternate weekend at the maternal aunt’s residence.
An Order was made for the Mother to continue to engage with all therapeutic interventions and counselling recommended to her. X has been in his father’s care since then and spent regular time with his mother. The time has not necessarily been uneventful. The parents have different versions as to why this has been the case. One of the issues in this case is the nature of the Mother’s relationship with Mr B, and whether it is, or was, a violent one.
The proceedings
The Hearing commenced on 16 September 2019 and continued until 18 September 2019. The Court directed, without opposition from the parties, that the order of the witnesses be reversed with the Mother and her witnesses giving evidence, and being cross-examined first. The matter was then adjourned part-heard to 18 and 19 November 2019. The Mother was not in attendance on either day though her Counsel and Solicitor were in attendance. Her Counsel indicated that the Mother was unwell and thus unable to attend. No evidence has been adduced to substantiate this. The case continued with the active involvement of her legal representatives. Following the close of the evidence on 19 November 2019, Counsel for the Mother sought, and was granted, an adjournment to lead further evidence on the issue of supervision. The Court made directions in this regard. The Mother neither led further evidence nor filed written submissions in the matter. Her legal representation withdrew on 4 February 2020. The Father’s written submissions were filed on 3 February 2020. The Independent Children’s Lawyer’s written submissions were due on 5 March 2020. An extension was granted to 5:00pm on 10 March 2020. None were received. After that date the Court proceeded to judgment.
All parties were represented by experienced family law counsel.
The competing proposals
By closing written submissions, the Father proposes that he have sole parental responsibility for X, that X live with him, and spend time with his mother each alternate Sunday from 10:00am until 2:00pm, and on special days, supervised by the Father or his nominee. He otherwise adopted orders 6 – 14 inclusive of the order proposed by the Independent Children’s Lawyer. The order he proposed is set out in the First Schedule to these Reasons for Judgment.
The Mother proposed that there be an order for equal shared parental responsibility. X should live with his father and that her time with X increase progressively. For a period of one month after the making of orders, X should spend time with her each alternate Sunday from 9:00am to 5:00pm. After three months this would extend to each alternate weekend from 10:00am Saturday to 5:00pm Sunday, and the first half of the shorter school holidays. Thereafter, X should spend time with her each alternate weekend from after school Friday to 5:00pm Sunday, and one half of each of the school holidays, together with special days. Her orders are also reproduced in the First Schedule to these Reasons.
As at 10:15am on the final day of the Hearing, the Independent Children’s Lawyer’s proposal was that X live with his father who would have sole parental responsibility. Until he turned 12 years of age in 2022, he would spend supervised time with his mother alternate Sundays from 9:00am to 5:00pm, and on special days, supervised by his father or his father’s nominee. Thereafter his time would be unsupervised. The Independent Children’s Lawyers proposed a number of other orders. The minute is reproduced in the First Schedule.
The Evidence
In the Father’s case he relied on the following documents:
a)Amended Initiating Application filed 2 September 2019;
b)Written submissions filed 3 February 2020;
c)Affidavit of Mr Hallum sworn and filed 2 September 2019;
d)Affidavit of Ms K sworn and filed 2 September 2019; and
e)Notice of Risk filed 17 July 2017.
In the Mother’s case she relied on the following documents:
a)Further Amended Response filed 12 September 2019;
b)Affidavit of Ms Walston affirmed and filed 12 September 2019;
c)Affidavit of Mr B affirmed and filed 12 September 2019;
d)Affidavit of Ms G affirmed and filed 12 September 2019; and
e)Affidavit of Ms G filed 21 July 2017.
The Independent Children’s Lawyer relied on her case outline document dated 13 September 2019.
The following material was tendered as evidence during the course of the proceedings:
a)Documents produced pursuant to subpoena on the Department of Family and Community Services;
b)Documents produced pursuant to subpoena on P School;
c)Bundle of school documents relating to X including school photographs and certificates (formally returned to the Respondent as they are original copies);
d)Sentencing assessment report in relation to Mr B;
e)Documents produced pursuant to subpoena on Dr Q at R Medical Centre Subpoena;
f)Intensive Correction Order as at 8 July 2019;
g)Facebook post by Ms K;
h)Facts Sheet in relation to Mr B dated 10 April 2018;
i)Documents produced pursuant to subpoena on NSW Police; and
j)Documents produced pursuant to subpoena on Region S Local Health District.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) 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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Expert evidence
It is convenient to commence with a close examination of the evidence of the Expert in this case. That is not because her evidence has any particular primacy or priority. She was, however, the only independent and expert witness to give evidence in this case.
By consent, Dr N was appointed as the Chapter 15 Single Joint Expert in this case. She is a clinical psychologist, and an educational and development psychologist. Her Report is dated 20 March 2019 and was released to the parties shortly thereafter. Dr N holds a Doctorate in Clinical Psychology. Dr N had available to her all of the material relevant to the case as at the time of her interviews. In addition, before she was cross-examined on the last day of the Hearing, she was given access to the party’s trial affidavits and the documents that had been tendered in evidence.
Dr N noted that the mother’s daughter, J, was born in 2014. She also has a daughter T, born in 2018 with Mr B. J’s father is Mr H (one of her previous violent partners). Dr N sets out some background matters in her Report. She correctly noted that both parents were quite young when they met, and when they had X. The relationship was a relatively short one. Due to the upheaval in the Mother’s life, X’s maternal aunt, Ms G played a significant role in his care and upbringing, before X went to live with his father in 2017.
Dr N made a number of preliminary observations about the Mother at paragraph 14 of the Report. Part of this warrants reproduction in these Reasons, principally because these comments resonate so strongly with the Court’s impression of the Mother in cross-examination. At paragraph 14 Dr N observed:
At times, she appeared not to have a clear recall of events from the past. I formed the impression that she was keen to ascribe many of the concerns which have arisen about her parenting due to the fact that she was not prescribed the right medication to manage her mood. I note that she has a significant history of mental health difficulties and dysfunctional relationships prior to her sustaining a significant head injury in 2015.
The Mother gave an account of her relationship with the Father which included violence. An AVO was sought in 2011. The account of the violence is set out in paragraph 21 of Dr N’s Report. She concluded in the last two sentences: “Ms Walston did not report any other form of family violence in their relationship. Her account indicated that this incident was separation induced.”
Dr N noted that the Mother reported having no fears of the Father, or his family, but the Mother found it very difficult to communicate with him and experienced him as being very critical of her.
The Mother in fact said that she preferred to communicate with the Father’s partner, Ms K, with whom she has a “reasonably amicable relationship”. The Mother told Dr N that she never has any concerns about X’s physical safety while he is with his father.
From the Court’s perspective, one of the issues in this case is the nature of the Mother’s relationship with her partners during X’s life, her insight in relation to the same, and their potential impacts on X. Dr N dealt with this under the heading “Other Relationship History”. At paragraphs 26 to 30 of her Report, Dr N states:
[26] Ms Walston in her affidavit of 10 August 2017, outlines two relationships she had after X was born, both of which appear to have been characterised by family violence .
[27] Ms Walston reports that in 2012, she moved into her own flat in Region C and in 2012 had a relationship with Mr F. In her affidavit of 10 August 2017, she described him as being “abusive and controlling” and stated that she ended the relationship after some months. She reportedly obtained an AVO against him and he was charged in relation to “multiple assaults”. After separating from Mr F she moved in with her sister, Ms G. At interview Ms Walston stated that Mr F had not assaulted her and that she had lied to the police because he was “cheating on me”. She reported that all the charges against him had been dismissed. FaCS material indicates concerns about domestic violence in Ms Walston’s relationship with Mr F including her reporting that he had assaulted her.
[28] Ms Walston reported that she had a relationship with Mr H in 2013. She fell pregnant within a few months of starting the relationship. In her affidavit of 10 August 2017, she reported that Mr H assaulted her at Town U station when she was seven months pregnant and he was charged in relation to this. At interview she said that she could not remember what family violence there had been with Mr H and perhaps he had “pushed her” after he “came home on drugs”. Ms Walston reported that she then moved to Town E to live with her sister and continued her relationship with Mr H including taking X to visit him in prison. Her account indicated that Mr H had some substances misuse issues. The relationship appears to have ended in 2015.
[29] Of note is mention in the information obtained under subpoena by FaCS that, at some point, Mr H was threatening to come to Ms Walston’s home with a firearm and take J. There is no indication that he did in fact do so. Ms Walston stated that she thinks that Mr H is currently in jail. He has had no contact with J, who now believes that Mr B is her father.
[30] Ms Walston stated that she has had other relationships and there had been no AVO’s in place with these partners.
The inconsistency between the Mother’s accounts of her previous violent relationships, and the objective evidence, was explored in cross-examination of the Mother, and will be discussed below.
The Mother’s relationship with Mr B, her current partner, is an important issue in this case. Dr N deals with this under the heading, “Relationship with Mr B” at paragraphs 31 to 37:
[31] Ms Walston reported that she met Mr B in 2016 and they married later in the year.
[32] At interview Ms Walston said that she had lied to the police in relation to the violence in her relationship with Mr B and reported that it was her, not him, who had instigated all the conflict between them. She said that this had been because she was “unstable” and not being medicated appropriately. She said “my brain was seizuring (sic)” and that as a result of this, she was very irritable and quick to react in anger to things she did not like that Mr B was doing.
[33] The material obtained under subpoena goes some way to support the view that Ms Walston had some marked difficulties with emotional regulation and impulsivity following her MVA in 2015, where she acquired a Traumatic Brain Injury. According to the notes subpoenaed from her treating psychiatrist, Dr L, Ms Walston stated that prior to September 2017, when her medication was changed, she was having difficulties with irritability and short temperedness, as well as paranoid and jealous thoughts regarding Mr B. However, this does not account for Mr B’s role in any disputes between them.
[34] NSW police records indicated that police attended the Town V property where the couple lived, five times between January 2017 and March 2018 to investigate the occurrence of domestic violence. Police note that, on several of these occasion, Mr B and Ms Walston were uncooperative with them and police were unable to obtain clear information as to what had been going on.
[35] On 8 June 2017, Mr B was arrested following an account by Ms Walston. She stated that Mr B had hit her in the ear with a closed right fist. Mr B had reportedly prevented Ms Walston from calling the police on her mobile phone and she had called the police from a nearby relative’s residence. Police then attended the Town V residence again on 8 July 2017. Ms Walston and Mr B had reportedly ended their relationship two days earlier and Ms Walston had attempted to gain access to the house through a damaged window. Police observed a video on Ms Walston’s phone that showed Ms Walston holding a child as she verbally argued with Mr B.
[36] There is no indication of any other police attendance to the home after March 2018. Mr B spent time in jail until July 2018. I understand that only police notes up to October 2018 have been subpoenaed. Both Ms Walston and Mr B reported that their relationship has been much more stable in the past six months and that this is due to Ms Walston responding well to her current medication regime.
[37] Mr B alluded to being involved in AA and some other services, possibly through probation after his release from jail. It is likely that his abstinence from alcohol and Ms Walston’s appropriate medication both would have helped improve their relationship. Mr B and Ms Walston also now have an eight month old daughter and may be very mindful of the fact that any police involvement would be likely to lead to risk of harm reports to FaCS.
It is interesting for the Court to note that in cross-examination, even the Father seemed to acknowledge his impression that the current relationship between the Mother and Mr B was more stable, and thus safe enough from X’s perspective that his time no longer needed to be supervised. This, of course, was not reflected in his final proposal to the Court at the conclusion of the evidence. From the Court’s perspective, it is useful to compare what the Mother told Dr N, to the evidence given by the Mother and Mr B in cross-examination about the violence in their relationship. This is set out below.
Another important issue in this case relates to the Mother’s physical and mental health. Dr N deals with this under the heading: “Mental Health, Head Injury and Substance Misuse”. Dr N had available to her not just the Mother’s account in relation to the above issues, but some objective information from those who assessed and treated the Mother. For example, Dr N referred to a report by the Mother’s clinical neuropsychologist, at paragraphs 40 to 42:
[40] A report prepared by Mr W, Clinical Neuropsychologist, who assessed Ms Walston after her brain injury, provides an outline of her mental health history. According to this, Ms Walston received a diagnosis of Bipolar Disorder in 2012 and post-natal depression with psychotic symptoms in 2014. This was associated with a suicide attempt and a two-week admission to a mental health facility in Town E. Ms Walston also reportedly told Mr W that she had been diagnosed with Borderline Personality Disorder and had responded well to dialectical behaviour therapy. Her history of trauma, difficulties with emotional regulation, impulsivity, attempts at self-harm and volatile interpersonal relationships would be very much in keeping with this diagnosis.
[41] According to Mr W’s report Ms Walston had been on a range of different medication over the years to try and stabilise her mental health problems. This had included Seroquel (anti-psychotic) and Celapram (SSRI antidepressant). Ms Walston was described as having history of impulsive behaviour and has numerous traffic offences notes in her COPS records. As a result of this she was disqualified from driving till 2037. She had sustained injuries, in part, because she was not wearing a seat belt and was thus thrown from the car she was travelling in.
[42] Ms Walston said that she used methamphetamine (“ice”) for four months before her head injury. Mr Hallum stated that he understood that Ms Walston had “Ice” on her person at the time of the motor vehicle accident. NSW police records indicate that Ms Walston’s criminal history includes possession of a small rock believed to be methamphetamine (“ice”) discovered on Ms Walston’s admission to Y Hospital following a MVA on 3 September 2015.
The Court observes that there information about the Mother disclosed in the report of Mr W that is not disclosed by the Mother in her Affidavit. Mr W’s report was also not amongst the tendered documents, but Dr N appears to have had access to it.
The Mother was involved in a motor vehicle accident on 3 September 2015 in which, as a backseat passenger, she was ejected from the car. Dr N refers to this event and its impact on the mother, at paragraphs 43 to 45 of her Report, drawing on what the Court considers to be the most reliable objective information on this event, and its impact on the Mother.
[43] According to Clinical Neuropsychologist, Mr W’s report (22 March 2016), on 3 September 2015 Ms Walston was transferred via an ambulance to Y Hospital following a MVA where, as a back seat passenger, she was ejected from the car. A CT brain scan showed right hemisphere extradural haemorrhage (EDH), subarachnoid haemorrhage in the right temporal and occipital lobes, mild effacement of sulci with 5mm midline shift to the left and fractured right temporal and parietal bones. Ms Walston required emergency craniotomy, evacuation of EDH and insertion of an intracranial pressure monitor.
[44] Mr W’s neuropsychological assessment, approximately six months post-injury, demonstrated that Ms Walston had sown good overall cognitive recovery. However, Ms Walston was found to have difficulties with new learning and memory for more complex information. Moreover her concentration was noted to be variable and mildly reduced. Mr W was of the opinion that her pre-existing issue with impulsive behaviour appeared to have been exacerbated by the injury. She showed some difficulties with planning and organising, poor judgment and failure to think ahead about the likely consequences of her actions. Many areas of cognitive function were intact including information processing speed, ability to understand questions and task instructions and express herself. Accordingly, Mr W concluded that Ms Walston’s profile of cognitive difficulties were consistent with the effects of a sever traumatic brain injury.
[45] Ms Walston has been under the care of Dr L, consultant psychiatrist, since June 2016. The subpoenaed material indicates that, after the initial presentation, Dr L stated that Ms Walston has a depressive illness with a biological and reactive component, and also presented with a range of post-traumatic stress symptoms. In correspondence with Mr Z, Ms Walston’s case manager, in February 2017, Dr L stated that Ms Walston’s mental health at that time was very different to the “frank psychotic depressive illness” she had prior to her injury. In February 2017, Dr L was of the opinion that Ms Walston’s presentation was related to the poor emotional control consistent with an acquired brain injury.
Dr N noted that on 11 March 2017, the Mother jumped out of a moving car and broke her shoulder because she was feeling upset at the time and felt that she was not a good mother.
In July 2017, the Mother was admitted to O Hospital Mental Health Ward after an overdose of her Seroquel prescribed medication. This event is referred to at paragraphs 47 to 48 of Dr N’s Report:
[47] In July 2017 Ms Walston was admitted to O Hospital mental health ward after she took an overdose of Seroquel. This appears to have been following a number of conflicts with Mr B (as noted above). She reported that her medication had been making her feel “depressed”. She was subsequently moved onto Carbamazepine 400mg. This is a medication normally used in the treatment of epilepsy but can also be used in the treatment of bipolar as a mood stabiliser. I note that an EEG taken at the time did not appear to indicate any seizure activity. Ms Walston said that she now also takes the antidepressant Effexor.
[48] Ms Walston attended some sessions at AA Psychology with Clinical Psychologist, Ms BB prior to transferring to see Ms CC, Psychologist at DD Therapy for ongoing psychological support. The material obtained under subpoena indicates that Ms Walston saw Ms CC for three sessions between August 2017 and September 2017, following her overdose with Seroquel. Ms Walston stated that she has been having ongoing appointments with Ms CC since then and that she has found her support very helpful. In 2017, Ms CC reportedly provided Ms Walston with relaxation strategies to manager her panic symptoms and irritability in social situations, and has worked with Ms Walston on strategies to manager her fixations on her partner (Mr B).
Dr N refers to the history of involvement by the Department of Family and Community Services (as it then was) in relation to the Mother’s children. This is discussed at paragraphs 54 to 57 of her Report:
[54] Mr Hallum reported that he understood there had been multiple reports to FaCS about Ms Walston’s care of the children particularly, X and J. The information obtained under subpoena indicated that there were nine risk of significant harm reports made between 29 July 2013 and 30 November 2015 related to exposure of the children to domestic violence, Ms Walston’s emotional state and substance misuse and risk of physical harm. The children had an allocated case worker through Town E CSC in early 2015. Town EE CFC also had some involvement with X in March 2013 as a result of the domestic violence between Ms Walston and Mr F.
[55] The notes from April/May 2015 indicate that Ms Walston did not actively engage with FaCS, for example often not responding to their calls and although she agreed to go into rehabilitation in May 2015 she in fact did not do so. The children were at that time in Ms G’s care and some concerns were raised about what to do should Ms Walston turn up and want to take them with her.
[56] Further reports were made to FaCS in June and July 2017 as a result of Ms Walston’s self-harm and the domestic in her relationship with Mr B. I note that there is one report from June 2017 in which X is reported to have told his teacher that Mr B pushed him against the wall when he was trying to step in and prevent an argument between Mr B and Ms Walston.
[57] As far as I am aware no notifications have been made in relation to Ms Walston and Mr B’s baby, T. I have not reviewed any FaCS documents in relation to Mr B’s children, FF and GG.
Mr B met with Dr N. His history commences at paragraph 59 of Dr N’s Report. She noted that he gave a similar account of the conflictual relationship with the Mother, but like the Mother, attributed these incidents to the Mother’s medication.
Dr N met with the maternal aunt, Ms G. The Court records that whilst it is the Court’s view that Ms G has played a very important role in X’s life, indeed X is very lucky to have her as his aunt, there is nonetheless substance in Dr N’s “overall impression” reported at paragraph 72 of her Report, that;
.. Ms G was very eager to ensure that her sister…was not painted in a bad light. She presented as quite defensive and protective of her. She was keen to explain how well Ms Walston was now doing…
Dr N observed, and the Court entirely agrees, that all parties in this litigation have no concerns about Ms G’s capacity to look after X and be focused on his best interests and wellbeing.
Dr N met with the Father. He was only 16 and at high school when the Mother fell pregnant with X. He left school after finishing year 10 and moved to Western Australia where he worked. He returned in December 2015. The Father did not regard the relationship with the Mother as a violent one. He did feel threatened by some of her subsequent partners, but was more concerned about X’s welfare in the context of the Mother’s violent relationship than his own welfare. The Father presented as eager to have a meaningful relationship with X, and stated that his motivation in bringing the proceedings was to ensure that X was safe. He accepted that when X came into his care in 2017, he did not know X very well and there was a period of adapting to each other, but their relationship was fine now. The Father accepted that his partner, Ms K, played a very important role in X’s life, and especially during the transition into the Father’s care.
At the time of the report interviews, the Father was concerned about X spending time with the Mother unsupervised, as well as whether the Mother’s partner, Mr B, was a safe person. In relation to the Mother, the Father was concerned about the risk to X of her past.
When Dr N met with X, she found him to be anxious. He said that he did not like doing much at school and was not currently participating in out-of-school activities. He described the game “Fortnite” as his favourite game. He told Dr N that he missed his mother and that he wanted to see Mr B. The observations recorded by Dr N gave the impression that X was aware of conflict between his mother and Mr B and that, by contrast, he had never seen his father and Ms K fight.
At paragraph 120, Dr N observed:
Bearing in mind some of the things X has been exposed to in his mother’s care, I think he has almost certainly some anxiety both about upsetting his mother (due to her brain injury/fragility) and also maybe provoking any anger in her (due to her past volatility/depression).
At paragraph 121, Dr N’s Report notes:
X said that it was hard to keep it secret that he was spending time at his mother’s house with Mr B and that this was something he did not want to have to continue keeping secret. He clearly wanted to spend time with his mother and siblings. He looked happy to see Mr B when he arrived for the assessment. X said that keeping these things secret sometimes created problems, for example, when he had burnt his leg on the side of the exhaust pipe of a bike when he was riding with Mr B and he had to make up a different story about how the burn had happened. I asked X where he slept when he was at his mother’s house and he said usually in the lounge because there were only two bedrooms at the house, one for his mother, T and Mr B and one for FF and J. He said he sometimes slept in the room with the other children.
The significance of the above is that the Order for X to spend time with his mother only permitted time at the maternal aunt’s residence, not the Mother’s home. Clearly, X was carrying an emotional burden of having to keep secrets. X has had quite extensive involvement with psychologists in his life. He was seeing Ms JJ, a psychologist at Town KK Medical Centre.
At 124 of her Report and referring to Ms JJ, Dr N notes:
She said that she first met X about four years ago. As far as I could establish he had been referred to her by the family doctor under a GP Mental Health care plan. This was when he had first come to live with Ms G. She described X as being “quite traumatised due to the things that were happening at his mum’s house”. Ms JJ was very clear that Ms Walston’s behaviour was “pretty unsafe” at the time. This was prior to her MVA. She said that despite everything that he had gone through at his mother’s home, she knew X loved his mother.
X also met with Ms LL, a psychologist. The initial appointment was in November 2017 and was instigated by the Father and Ms K. As will be seen from the discussion of the cross-examination of Dr N below, as at the time of the report interviews neither the psychologist or Dr N had been told about some serious issues relating to X’s mental health.
Dr N observed X’s interaction with his parents and other family members. No concerns were identified about the interactions between X and any of his family members. She observed that Ms K appeared to take more of the lead in interacting and engaging with X compared to the Father, who was more passive than her.
Dr N’s summary and recommendations commence at paragraph 134. She correctly observed, for example, that X is very fortunate to have a number of people in his extended family who have ensured his welfare at a time when his mother was not in a position to do so, and even at times when his father was unavailable. Whilst Ms G’s important role was noted, Dr N did sound a note of caution, warning that at times Ms G appeared more concerned about advocating for the Mother than for X.
Dr N acknowledged the importance which both parents placed on X having a relationship with each other and their willingness to support this, notwithstanding difficulties in communication. She felt they had the “potential” to manage equal shared parental responsibility.
At paragraph 137 to 146, Dr N concludes:
[137] It is my recommendation that X should remain living with his father. Although there is some indication that Ms Walston is now much more stable than, possibly, at any time in her adult life, she still has a number of significant vulnerabilities. Prior to her head injury she had a significant history of emotional dysregulation, mental health problems and difficult interpersonal relationships. Her mental health appears to be currently well managed. Her brain injury has also left her with a number of vulnerabilities in relation to her day to day functioning. Perhaps the ones of most concern are her impulsivity (which appears to have been a problem she also had pre-morbidly), as well as difficulty with planning and organisation.
[138] X has been exposed to a lot of psychologically distressing events whilst in the care of his mother and also had periods of separation from her when she appeared more focussed on her own needs than on his. It is likely that if Ms G had not been able to look after him and his sister, J, in early 2015, they would have been placed in out of home care.
[139] X has already had to change school twice and I cannot see how it would be in his best interest to be uprooted once again, particularly now that he appears settled living with Mr Hallum and Ms K. Ms K appears to have a genuine sense of care for him and appears to be doing her best to support him.
[140] There is some indication that Ms Walston and Mr B’s relationship has improved since Mr B’s release from jail in July 2018. It is possible that the three months away gave him some opportunity to reflect on his own behaviour. It is also highly probable that the combination of Ms Walston’s mood being more settled on her current regime of medication, couple with Mr B’s attempts to reduce his use of alcohol, has also led to less conflict in their relationship.
[141] As far as I am aware, there have not been any further incidences of family violence since Mr B’s return to the family home. I think the main risk for X stems from potential exposure to family violence between his mother and Mr B. I am not convinced that either Mr B or Ms Walston gave a completely open account of the conflicts between them at interview. I am also not sure if Ms Walston would be entirely open if further incidents occurred.
[142] Mr B’s history of offending is not such that it would preclude him having the care of a child, as confirmed by the fact that he has his son, FF, living with him and also that, as far as I am aware FaCS have not sought to intervene following the birth of T.
[143] It is evident that X has already been spending unsupervised time with his mother and Mr B for some time with the support of his aunt, Ms G. Ms G, who was allocated the role of supervising the contact by the Court, clearly believes that X is not at risk through doing so.
[144] The pressure on X to keep this a secret is not a reasonable one that a child of his age should have to carry and it has clearly been stressful for him to do so. X has had to deal with a lot of changes in his life and he is a little boy who appears to have come vulnerabilities based on his history with his mother, as well as some issue with his learning. He needs as much stability and support as possible. In my view, he is likely to be at less risk of harm if he can openly spend specific times with his mother and Mr B and then be able to talk about this time rather than keep it secret. I would therefore support him having some unsupervised time with his mother and Mr B on every second weekend. I would recommend that in the school holidays he might spend at least some time in Ms G’s home where he can enjoy the company of his cousin’s.
[145] If X is to spend time with his mother there are certain factors which need to be in place. He needs to have a proper place to sleep. Ms Walston needs to continue taking her medication and seeing her treating psychiatrist, Dr L, and psychologist, Ms CC. She needs to ensure that she manages any conflict with Mr B and that she acts to protect X and his siblings if there is family violence in the relationship. I would also recommend that Mr B not drink alcohol in the family home or come to the home in an intoxicated state. In understand that his parent’s live close by and it is likely he could easily stay at their house if need be. If there are further incidents of family violence between them then X should not spend unsupervised time with Ms Walston and Mr B.
[146] It is also likely that, given Ms Walston’s compensation pay out, she will in the future have access to financial resources which she can use to pay for services and assistance as needed. This is also likely to reduce the stresses on her relationship with Mr B.
Dr N was extensively cross-examined on the final morning of the Hearing. Immediately before Dr N was cross-examined, Counsel for the Independent Children's Lawyer announced the Independent Children's Lawyer’s proposal, and provided a short minute to that effect. The Independent Children’s Lawyer proposed that the Father have sole parental responsibility, and that X live with him. X would spend time with his mother until he is 12 years of age (in 2022), supervised each alternate Sunday from 9:00 to 5:00pm, and on Christmas Day and Mother’s Day and other agreed days, with the supervisors to be the Father and/or his nominee or nominees. From age 12, X’s time with his mother would become unsupervised but the times would remain as set out above.
Thus, before Dr N was cross-examined, the competing proposals were that of the Independent Children’s Lawyer set out above, the Mother’s proposal for unsupervised and extended time with X, and the Father’s proposal for unsupervised but limited time between the Mother and X. In addition, at paragraphs 144 and 145 of Dr N’s Report, she suggested that she supported unsupervised time, subject to the conditions referred to in those paragraphs.
It is somewhat curious that the Independent Children’s Lawyer should announce her proposal before the cross-examination of the Chapter 15 Expert, particularly when their proposal was inconsistent with the Expert’s evidence. The timing was curious for another reason – it was announced at the end of the Father’s case, even though the Mother’s case had concluded on 18 September 2019 but two months earlier, and in circumstances where Counsel for the Independent Children's Lawyer’s cross-examination of the Expert focused almost exclusively on concerns about the Mother’s case, not the Father’ case. One wonders whether, with the benefit of hindsight of course, it might have been better for the Independent Children’s Lawyer to await the conclusion of all the evidence, including that of her own witness, before advising the parties, and the Court, of the Independent Children's Lawyer’s proposal. This is particularly the case when, as it turns out, Dr N changed her view during her evidence, and came to adopt the Independent Children's Lawyer’s proposal for the Mother to have supervised time, though not without some hesitation.
The examination of Dr N commenced with Counsel for the Independent Children's Lawyer. He put a number of propositions to her, which will be discussed below.
Dr N accepted that both the Mother and her partner Mr B had serious personal vulnerabilities. Their current accommodation, consisting of a two-bedroom home which they shared with two other children was not really suitable accommodation for X at this time. She was of the view the proper arrangements for X would need to be put in place before he could spend overnight time with his mother. The Court’s impression of Dr N’s evidence on the accommodation issue was that it was a factor for the Court to consider, but not a determinative one. The Court believes that the Mother’s accommodation, and her ability to comfortably have X stay overnight, were not matters that ultimately inform whether X’s time with his mother should be supervised, or unsupervised.
Dr N accepted, however, Counsel’s second proposition about the Mother’s serious acquired brain injury, and the Mother’s significant history of emotional dysregulation. Indeed, Dr N explained that even before the Mother acquired her brain injury as a result of the motor vehicle accident, she had already been diagnosed with Borderline Personality Disorder. After the brain injury, further complications arose including the diagnosis of Bipolar Disorder. Dr N accepted that a risk for the Mother was her impulsivity and difficulty planning and organising things. She conceded that organising overnights for X might be challenging for the Mother, at times. Dr N emphasised, however, that when she met the Mother for the purposes of the report interviews, she found her to be stable, and possibly in the best mental condition she had been in for many years. Nonetheless, her view of the Mother remained that she was vulnerable, and that her relationship with Mr B probably increased her vulnerability, rather than ameliorated it. This was because of Mr B’s own vulnerabilities.
Dr N did not believe, however, that there was a significant risk of the Mother relapsing into past drug abuse. She described this risk as minimal, and suggested that in fact the risk of relapse very much depended on her partner, Mr B, and issues about his own drug and alcohol use.
Counsel explained to Dr N that during cross-examination what had become apparent was that the Mother had a tendency to “go walkabout” for a few days. Dr N explained that whilst she was not aware of that, it was unsurprising from her perspective, given the Mother’s complex history. She emphasised, however, that this was not necessarily inappropriate if the circumstances were that it benefitted the Mother, and that those in her household were otherwise supported, and supportive.
Counsel took Dr N to what he described as, in effect, a serious of violent relationships that the Mother had entered into. The allegedly violent relationships included with the Father, with Mr F, Mr H, and with Mr B. Dr N drew a distinction, however, between the allegedly violent partners. In relation to the Father, for example, she pointed out that both the Mother and Father were very young at the time and they had conflict which both escalated and deescalated. The Mother reported having no fears of the Father, and Dr N felt that some of the incidents were separation-induced.
By contrast, the relationships with Mr F and Mr H were part of the chaotic life that the Mother was living at the time, and her real concern about the Mother was that she may have been minimising the nature and extent of the violence, and the relationship chaos with both men.
The allegations of violence involving Mr B were complicated by the fact that they were still together. One concern she had was that the Mother could get dysregulated in this relationship, because of factors such as jealousy, and that if Mr B turned to alcohol this could fuel violence. A particular concern she had about Mr B was that his own psychiatrist had raised issues about whether he suffered from Bipolar Disorder too. In relation to all of these factors, and the relationship between the Mother and Mr B, Dr N said: “It’s not a good mix.”
Dr N accepted that X is himself anxious. Dr N explained that it was possible that he was genetically predisposed to anxiety, but it was more likely that this was attributable to the changes and instability in his life, and possible exposure to family violence. What X needs more than anything else, Dr N agreed, was stability and consistency in his life, and a carer who will put his need first, and provide ongoing emotional support.
Dr N also agreed that the Father’s own anxiety about the care provided to X by the Mother was a factor to be considered. In particular, his concerns that Mr B was not a safe person to care for X. (This was curiously inconsistent with the Father’s own evidence that he was, in effect, less concerned about Mr B, and thus was open to unsupervised daytime contact). Dr N was not entirely confident about the Mother’s capacity to ensure that Mr B could be controlled, particularly if he was drunk and aggressive. Nonetheless, if both the Mother and Mr B were stable, there seemed a manageable risk.
Counsel asked Dr N about the role of Ms G, who Counsel characterised as playing an important role in managing the relationship between the Mother and the Father’s partner, Ms K. Dr N seemed reluctant to accept the characterisation of Ms G’s role as being an important one. Moreover, she was not surprised on being told that in cross-examination it emerged that between April and August 2019, the relationship between the Mother and her sister, Ms G, had broken down. Indeed, Dr N explained that the Mother probably has fairly volatile relationships with the people she is closest to. Her concern about Ms G was that her actions suggested a belief that X did not need to be supervised by the Mother, and thus she adopted a very passive role in this regard.
Having regard to all of these matters Dr N made it very clear that she was not confident at all that there would not be any risks associated with overnight unsupervised time between X and his mother. The more difficult issue, however, seemed to be what risk was associated with unsupervised daytime contact with his mother. Dr N explained that this depended on where this was being held, who was present, and the Mother’s own insight into her own condition. She observed that whilst X seemed happy to see Mr B at the report interviews, and she did not consider Mr B all bad, but had to accept that there was a measure of risk to X if Mr B used alcohol, or when the Mother became unstable. The fact remained that X very much loved his mother, and is loyal to her, and does not want to upset her. Nonetheless, a recurring theme of Dr N’s evidence is that X should not be placed in a position where he is forced to keep secrets, referring to the fact that X was spending time at his mother’s home, contrary to the terms of an order prohibiting that.
Dr N’s main concern with the Independent Children's Lawyer’s proposal was that it was impracticable. It required supervision in the long term and was, in her words, “a recipe for conflict”. This was exacerbated by the fact that the Mother and Father do not communicate, and that the Mother can be quite volatile. Dr N accepted that if the evidence was that the Father had, in fact, been supervising the Mother’s time with X for four or five months, that was positive. However, she pointed out, the interim order provided for four hours, whereas the Independent Children’s Lawyer’s proposal was for eight hours.
Even if four hours could be achieved, given the circumstances of the case, a longer period would be problematic. She conceded that four hours of supervised time would be practical to achieve, and provided to X the important predictability that he needs. Of course, as he grew older, the need for supervision would diminish because X would be better able to protect himself, as well as report any concerning issues.
The Court asked Dr N for her impressions about the evidence suggesting that X was experiencing hallucinations. She explained that it would be highly unusual for a child his age to be experiencing psychosis. She thought it was quite likely to be a manifestation of the acute anxiety that he was experiencing, or it could be trauma related. It was a clear indicator that X was not coping. It was possibly related to the games he was playing.
The Father’s Counsel examined Dr N. She was asked to comment on the Father’s evidence that Ms MM from the NN Centre, supposedly a trauma specialist mental health worker, told Ms K that she suspected that X had Dissociative Identity Disorder.
Dr N explained she could not comment on whether it was a valid diagnosis or not. She suspected that it was a way of describing aspects of X’s behaviour that included his anxiety, and his exposure to a range of events and experiences that he should not have been exposed to as a child. She seemed relieved that X was seeing a trauma specialist. Again, Dr N emphasized the importance of stability, routine, and avoiding conflict and difficult situations for X. All of these things would address X’s anxiety.
When asked about a supervised time between X and his mother, Dr N accepted that the issue of supervision was important, but probably difficult, and that it was legitimate for the Father to feel the need to trust the supervisor. One benefit of supervision until age 12 was that it would give X a predictable, consistent stress-free time with his mother that was entirely transparent, and provided him with opportunities to talk about his feelings.
Counsel for the Mother cross-examined Dr N. He commenced by explaining to her that Ms K, the Father’s partner, and the Father had given evidence about the mental health issues experienced by Ms K early in 2019. Dr N accepted that this was not disclosed in their Affidavits, and they had not told Dr N about these issues during the report interviews. It was noted that amongst the diagnoses given to Ms K was Obsessive Compulsive Disorder, anxiety, and Bipolar Disorder. Dr N explained it would have been helpful to her to know more about the nature of the problems experienced by Ms K, how these were diagnosed and by who, what was the prognosis and how Ms K was being treated. Ultimately, however, Dr N acknowledged that the issue of Ms K’s mental health did not ultimately directly inform a risk assessment of the Mother’s time with X.
Counsel for the Mother put it to Dr N that the evidence suggested that in relation to X the Father had largely delegated to Ms K much of his care, including addressing his medical needs. Dr N explained that this was consistent with her impressions formed at the family report interviews.
He put it to her that there was palpable hostility between the Mother and the Father, and that this was evident in cross-examination. Dr N explained that this was not something she had observed, that it was clear that there was no communication between them, and there was probably hostility. She accepted that this might create some difficulties with the Father supervising X’s time with the Mother. She reiterated her concern that the proposals before the Court in relation to supervision by the Father, or his nominee, were possibly unrealistic, unsustainable, and could eventually lead to more conflict. She accepted that no supervision with the Mother’s time was problematic because the Court could not be satisfied if X would be protected from the Mother’s inappropriate behaviours and issues, but conversely if the Father supervised, that might create a different set of tensions for X. Dr N was aware that Ms G had expressed reluctance about continuing to supervise.
Dr N was asked about her opinion in relation to the Father’s proposal for sole parental responsibility. She accepted that, if the evidence was that the Father had excluded the Mother from all decision making in relation to X, including about medical issues since August 2017 this would not be constructive to the relationship. She would hope that the parents would share information but accepted that if the evidence so indicated, this might be unlikely.
Counsel sought Dr N’s confirmation that paragraph 144 of her Report supported unsupervised time between X and the Mother, conditional on a range of issues including the Mother having appropriate accommodation. He asked, therefore, if it was only day time contact that the Mother was proposing why would not unsupervised time be appropriate? Dr N commenced by focusing on concerns in relation to Mr B. She had examined some of the subpoenaed documents relating to him, e.g., Dr Q’s reports about his addiction, hypomania and lack of insight. She had read the accounts of the assault by the Father at the hotel which, if accepted (she emphasized) suggested quite a high degree of violence on his part. She was concerned that Mr B had not told her these things. Dr N had already expressed the concerns in relation to the Mother. Nonetheless, she accepted that if contact was limited to day times only, it might mitigate the risk of harm to X, but ultimately she could not say for sure.
A number of factual matters were put to Dr N in cross-examination, particularly by Counsel for the Independent Children’s Lawyer. The Court is satisfied that the matters put to her in fact represent the findings of this Court where relevant.
The Court accepts Dr N’s evidence. She clearly has reservations about unsupervised time. Those reservations are more significant if the time included overnights, but in any event her concerns extended to unsupervised day times as well. It is also clear, however, that she appreciated the complexities associated with the proposal of the Father and Independent Children’s Lawyer about supervised day time contact until X turns 12. Her concern was principally in relation to who would be the supervisors, and the Father’s role in this. Nonetheless the Court found compelling Dr N’s understanding of the risk issues confronting X, particularly emanating from what she described as the vulnerabilities of both his mother, and Mr B.
At the conclusion of the evidence of Dr N, Counsel for the Mother applied for, and was granted an adjournment. The Court accepted Counsel’s submissions as to the fundamental unfairness to the Mother of having to confront a case which involved proposals from both the Father and Independent Children’s Lawyer which had changed markedly on the last day of the Hearing. A very important issue had arisen – if the Court finds that the Mother’s time should be supervised, who the supervisors should be.
The Mother was represented by an experienced family law specialist, and specialist family law Counsel. The Court does not doubt that they would have had a realistic appraisal of the evidence that the Court had heard, and thus would have appreciated the formidable difficulties confronting the Mother in her case for unsupervised time. In no way does the Court suggest that this would diminish their unswerving advocacy on behalf of the Mother in relation to the orders that she sought. However, it probably focussed their minds on one of the forensic issues for the Court to determine if the Mother’s time was to be supervised; who would the supervisors be? Directions were therefore made for further evidence to be filed in this regard. The Mother did not avail herself of this opportunity.
The evidence of the Mother
The primary focus of the examination of the Mother’s evidence will be on risk assessment. Whether X spends supervised, or unsupervised time with his mother will largely depend on the view that the Court formed about whether the Mother is a risk of harm to him. The examination of the evidence commences with the Mother’s Trial Affidavit affirmed 12 September 2019. By its very nature, the matters contained in the Mother’s affidavits are admissions. At paragraphs 9 and 10 of her Affidavit the Mother explains that in 2012 she commenced a relationship with Mr F. She describes the relationship as abusive and controlling and deposed to Mr F not letting her contact her family. She contacted the Police and he was charged with multiple assaults and the Mother had the benefit of an AVO for two years between 2012 and 2014.
The Mother’s account of her relationship with Mr F as recorded in the Report of Dr N is different. In this regard, it should be noted that this part of Dr N’s Report was not challenged in cross-examination. At paragraph 27 of the Report, the following is recorded:
At interview, Ms Walston stated that Mr F had not assaulted her and that she had lied to the police because he was ‘cheating on me’. She reported that all the charges against him had been dismissed. FACS material indicates concerns about domestic violence in Ms Walston’s relationship with Mr F, including her reporting that he had assaulted her.
There is an obvious inconsistency here. This leads the Court to have concerns that the Mother was either not properly disclosing the nature and events during her relationship with Mr F, or that she is minimising the same.
At paragraph 13 and 14 of her Trial Affidavit, the Mother deposes that she had a relationship in 2013 with Mr H, to whom she bore a child, J, in 2014. She explains that Mr H assaulted her at Town U railway station while she was seven months pregnant, and was jailed for three months for that assault.
At paragraph 28 of the Family Report, again not challenged in cross-examination, Dr N records in relation to Mr H:
At interview, she said that she could not remember what family violence there had been with Mr H, and perhaps he had ‘pushed her’ after he ‘came home on drugs’.
The concerns expressed above in relation to the Mother’s evidence, applies equally here.
The Mother discloses in her Trial Affidavit that in 2015, she suffered severe post-natal depression after the birth of J, and then turned to drugs and commenced using ice. The Mother deposes that she contacted what was then the Department of Community Services and asked for assistance in caring for the children, and this led to both J and X living with her sister, Ms G, between May and September 2015. The Court notes that the Mother attributed departmental involvement to the Mother’s request for their assistance because she was “suffering from post-natal depression”, that inferentially, not because of her ice use.
The Mother deposes that, in September 2015, she was involved in a serious car accident. She was a passenger in the back seat, the seatbelt was broken, and she was flung from the vehicle. The children were returned to her care in October 2015.
In her Affidavit, the Mother deposes to an admission to the mental health ward at O Hospital on 8 July 2017 following an overdose of her prescription drug Seroquel. Her medication was reviewed, and she felt much better.
In relation to Mr B, she deposes that the relationship commenced in 2016. He has a son, FF, born in 2011. Together, they have a daughter T, born in 2018. The Mother speaks very highly of the support that Mr B has provided to her in recent years and, at paragraph 54: “…specifically, throughout my head injury symptoms, which include the fact that I am somewhat quick-tempered.” She also discloses that Mr B is currently serving a 12-month sentence in home arrest for a conviction arising out of a fight at a pub in Town U, which conviction is subject to a severity appeal. She explains that Mr B is voluntarily attending Alcoholics Anonymous.
At paragraph 62, she acknowledges that her relationship with Mr B was unstable in the beginning, but now regards it as much more stable. At paragraph 62, she deposes:
In or about 2017, there was an AVO placed for my protection against Mr B for false allegations I made. …I do regret making false allegations against Mr B and I do say that Mr B and I have never been in a domestically violent relationship.
Dr N discussed with the Mother her relationship with Mr B, in the family report interviews. At paragraph 32 of the Family Report, Dr N records:
At interview Ms Walston said that she had lied to the police in relation to the violence in her relationship with Mr B and reported that it was her, not him, who had instigated all the conflict between them. She said that this had been because she was “unstable” and not being medicated properly. She said “my brain was seizuring (sic)” and that as a result of this, she was very irritable and quick to react in anger to things she did not like that Mr B was doing.
Dr N goes on to acknowledge, in paragraph 33 of the Report, that the documents produced on subpoena in fact supported the view that the Mother had marked difficulties with emotional regulation and impulsivity following her accident in 2015 which resulted in a traumatic brain injury. The difficulty for the Mother, however, is that, in her Trial Affidavit at paragraph 63, the motive given for her making the false allegation against Mr B was her belief that he had been cheating on her. That may, or may not, be consistent with what she told Dr N.
In any event, at paragraph 63, the Mother was quite categoric in denying a domestically violent relationship with Mr B. Dr N records, however, at paragraphs 34 and 35 of the report:
[34] NSW police records indicated that police attended the Town V property where the couple lived, five times between January 2017 and March 2018 to investigate the occurrence of domestic violence. Police note that, on several of these occasions, Mr B and Ms Walston were uncooperative with them and police were unable to obtain clear information as to what had been going on.
[35] On 8 June 2017, Mr B was arrested following an account by Ms Walston. She stated that Mr B had hit her in the ear with a closed right fist. Mr B had reportedly prevented Ms Walston from calling the police on her mobile phone and she had called the police from a nearby relative’s residence. Police then attended the Town V residence again on 8 July 2017. Ms Walston and Mr B had reportedly ended their relationships two days earlier and Ms Walston had attempted to gain access to the house through a damaged window. Police observed a video on Ms Walston’s phone that showed Ms Walston holding a child as she verbally argued with Mr B.
Returning to the Mother’s Trial Affidavit, she acknowledged at paragraph 77 that she suffers (and in this regard, the Court has no doubt that the paragraph is framed in the present tense) from anger management problems since the car accident due to her head injuries, but she believes this is managed through medication. She deposed to punching her front glass door and breaking it. She also deposes to suffering from mood swings attributable to the head injuries, and accepts that her current diagnoses are Bipolar, Borderline Personality Disorder, major depression and anxiety.
In relation to X, at paragraph 81, she deposes that X was attending on a psychologist, Ms OO, “…as he was exposed to family violence whilst I was in the relationship with Mr H.”
The Mother also acknowledges that she is living in a home at Town U with Mr B, with FF, J and T. She describes it as a two-bedroom home with all the usual amenities.
The Court observes that, even on the Mother’s own evidence, and before cross-examination, there are apparent inconsistencies between what she sets out in her Affidavit, and what she told Dr N. It is reasonable to have concerns both about the Mother’s disclosure of the nature and extent of the violence in her relationships, and about her insight in relation to them. She has some insight, however, in relation to the impact on her of the traumatic head injury she experienced, as well as the Bipolar, Borderline Personality Disorder, major depression and anxiety that she suffers. The Mother recognises that, at the very least, X was exposed to family violence during her relationship with Mr H, and needed to see a psychologist.
The Court finds that the Father has acted in an autocratic manner as regards decision making in relation to X, since he came into his care in 2017. There was no consultation whatsoever in relation to decisions such as schooling and medical matters. His lack of trust in the Mother and inability to communicate, is probably the cause of this. There is so much more he could have done to attempt to involve her in decision making. This does raise issues about parental responsibility.
Much was made in cross-examination of the Father about his knowledge of his wife’s mental health. He probably knew far more than he had let on about this. He certainly should have told Dr N what he knew. He did not do so, for no good reason, the Court finds. As it turns out, however, what evidence there is before the Court about Ms K’s mental health has suggested it is under control, and that she is able to function normally. The evidence of Ms K herself, together with the evidence of Dr N, provides reassurance in this regard.
In terms of the issues for the Court to decide, however, the Court’s biggest concern about the Father is the issue of the practicality of him supervising the Mother’s time, and the consequential risk that X will be exposed to conflict in this regard. However, there is no actual evidence before the Court of conflict between the parents during X’s time with his mother, let alone of X being exposed to the same. Nonetheless, given his lack of trust in and inability to communicate with the Mother the Court will need to carefully consider whether he should be in a position to either supervise, or nominate a supervisor.
The evidence of Ms K
A number of observations have already been made about the Father’s partner, Ms K, in the previous section. She has played a very active, and important role in X’s life. Even the Mother seems to have a measure of confidence in her skills as a step-mother to X. Indeed, she probably has a far better relationship with the Mother than does the Father. Her capacity to support the Father in raising X is more than adequate.
Orders in the best interests of X?
X has a meaningful relationship with both of his parents. This is both a present fact as well as something from which he will benefit in the future. The Court is satisfied, in the circumstances of this case, that all the proposals before it would ensure that X’s meaningful relationship with his mother is continued.
The main issue in this case is protecting X from the risk of harm whilst in his mother’s care. The Court finds that the risk of harm considerations in this case are real, and possibly continuing.
The Mother has an unfortunate history of relationships with partners that are characterised by violence. These relationships included Mr F, Mr H and her current relationship with Mr B. The evidence of these violent relationships is clear, including the Mother’s own admissions. The Mother has minimised the nature and extent of these violent relationships, and in the case of her current relationship, of the ongoing risk. She demonstrated no insight into the potential impact on X of these relationships. It is highly likely that X has been exposed to violence in each of these relationships. It is quite likely that X was inadvertently caught up in a physical incident involving his mother and her current partner in June 2017. What probably took place was that X attempted to step into, or between, a physical altercation between his mother and Mr B, and was thrown or pushed into a wall. The Mother failed to show any understanding of the need to protect X from the re-occurrence of such incidents.
There is a risk of harm to X as a result of what could be described as the Mother’s instability and transience in her life. These things are the unfortunate consequence of what the Mother has experienced in her life and the mental health issues she experiences. Once again, the Mother manifested little insight into how the conditions that she experiences would have a potentially adverse impact on her son.
The Mother’s lack of insight into these matters is demonstrated by her failure to comply with Orders that her time with X was to be supervised.
There is a risk of harm to X in his mother’s care of exposure to Mr B’s alcohol abuse, and the consequent risk of aggressive and possibly violent behaviour. Mr B’s violent behaviour is clearly established on the evidence. The link between that violent behaviour and excessive use of alcohol seemed clear to everyone but Mr B himself.
There are no risks of harm to X whilst in his father’s care. Whilst his father’s partner, who is very much involved in X’s life, may well have herself experienced mental health issues, the evidence suggests that these issues are under control and adequately managed. The Father’s partner was an impressive witness, committed to the care of X and having what appears to be a good relationship with the Mother.
X did not express any views about the outcome of this case that the Court is prepared to place weight on.
All of the evidence in this case suggests that X has a close and loving relationship with his father, and his father’s partner. It is likely that his father’s partner plays a significant role in his day-to-day care. The paternal grandmother appears to be a significant person in X’s life. These are all positive, supportive, current and ongoing relationships that benefit X.
X has an important relationship with his mother, as well. It is highly likely that he loves her, and the Mother clearly loves X. Were it not for the pervasive risk of harm issues in this case, it would have been possible for X to spend much more time with his mother, in a far less regulated environment.
The Father has been consistently available for X since coming into his care. The Father has made all relevant decisions in relation to X since 2017. The Mother’s unfortunate history of dysfunctional relationships, and likely struggle with mental health and other health issues, has meant that she has been less available than she would have liked to be. This has meant that she has not been able to take advantage of the opportunities to make decisions and to spend time and properly care for X.
The changes proposed by the orders largely relate to the question of supervision. The Mother proposes the removal of supervision, and an immediate increase in X’s time with her. The Father and Independent Children’s Lawyer propose the maintenance of supervision for a period, and then the reduction of the same. Because of the risk issues, the Court believes that the Mother’s proposal would be too great a change for X, let alone a change that would be productive of risk, rather than minimising the same.
Whilst the parents live about an hour apart, they seem to have managed issues of practical difficulty and expense of X spending time with his mother.
The Court must consider the capacity of each parent to provide for X’s needs. The Father, closely support supported by his partner, demonstrated a strong capacity to meet X’s needs consistently and on an ongoing basis. X has had challenges at school, in respect of which he has received his father’s support and intervention. By contrast, historically the Mother struggled to meet X’s needs. This is explained by a combination of the Mother’s physical injuries, mental health issues, and the series of unstable and dangerous relationships in which she was involved.
The parents met when they were quite young. The Father’s background appears to have been quite settled. He continues to be settled, and he is in a long-term relationship with his partner. They have a daughter M who is 3 years older. The father’s partner has a daughter RR who is nearly 6. The Father appears to have stable work as does his partner. The Mother had a very difficult childhood and teenage years. There was a measure of instability which seems to have continued into her adult life and which was exacerbated by physical illness as well as mental health issues, and then a series of dangerous relationships. It is, regrettably, by no means certain that the Mother is entering into a period of greater stability in her life. It is not clear from the evidence, for example, how long she actually spends from week to week in her own home, and with her partner.
The Court is required to consider parental attitudes, so far as the responsibilities of parenthood, and towards X. Whereas the Father has been quite consistent in seeking to rise up to the responsibilities of parenthood, the Mother has clearly struggled in this regard. The contributing and exacerbating factors which explain this have already been adverted to. Dr N formed the impression that even though the Mother clearly did the best she could do to support X, nonetheless she seemed to advocate for her partner rather than prioritising X’s needs. By exposing X to family violence, and not being able to manifest insight into the consequences for X, the Mother failed to demonstrate a responsible attitude. This was in strong contrast to that of the Father. The Mother’s failure to participate in the Hearing to its conclusion is disconcerting, and did nothing to reassure the Court in relation to the many concerns raised about the Mother.
The Court must take into account family violence. The evidence of this has been set out at length that during these Reasons for Judgment.
The Mother seeks an order for equal shared parental responsibility, but both the Father and Independent Children’s Lawyer propose that he have sole parental responsibility. The evidence of the risk of harm to X in his mother’s care is quite clear in this case. The Court accepts that, in a historical sense, the Mother is probably in a more stable and safer place than she has been in the past. Nonetheless, the risk of relapse into risky and dangerous behaviour is very real, and the Mother’s lack of insight and understanding makes this risk a significant one. Her continued presence in X’s life is not even something that the Court is prepared to safely assume into the future. Having regard to all of that is matters, and the evidence before the Court, the statutory presumption cannot apply. The Father should have sole parental responsibility.
The Mother’s proposal for X to spend time with her involves the immediate removal of supervision, as well as the extension of time, and the progression to overnight time within a period of three months, and thereafter to alternating weekends as well as half the school holidays. It is unfortunate that the Mother did not remain engaged in these proceedings until the conclusion because it would have given the Mother the opportunity to make a proposal, perhaps even in written submissions, that more accurately reflected the evidence before the Court. This evidence is clearly inconsistent with her proposal.
The Father’s proposal is that until X turns 12 years old and is, therefore, better able to protect himself as well as to communicate concerns to his father and others, X is to spend time with his mother each alternate Sunday from 10:00am until 2:00pm supervised either by the Father or his nominee. After X turns 12, his time with his mother would progress to alternating weekends as well as time during school holidays.
The Independent Children’s Lawyer’s proposal provided, consistently with the Father’s proposal, that until X turned 12 he would have supervised time with his mother. The difference in proposals, however, is that the Independent Children’s Lawyer proposed each alternate Sunday from 9:00am until 5:00pm. It would have been of much assistance to the Court to have received written submissions that address the differences in the proposals, and the rationale for extending X’s time with his mother in circumstances where it would need to be supervised.
Both the Father and Independent Children’s Lawyer proposed that the Father would be the supervisor, or his nominee. In other cases this would be considered to be an onerous responsibility and, indeed it is. In this case, however, the Father shows a past, present, and future willingness to provide this supervision. Clearly he is supportive of X’s relationship with his mother. Equally clearly, both from his perspective, and the Court’s perspective, the Father’s proposal is more realistic. To expect the Father to not only supervise, or arrange supervision, but to do so for 8 hours, instead of 4 hours each fortnight, is not reasonable or practicable. The Father’s proposal is to be preferred.
The Father otherwise adopts orders 6 – 14 inclusive of the Independent Children’s Lawyer’s minute. The Court agrees that these orders are appropriate and proportionate to the issues involved, and in X’s best interests.
The Court is confident that insofar as the orders proposed by the Father contemplate the Mother spending more time with X as agreed between the parents in writing, that he will in fact facilitate this. His commitment to encouraging X’s relationship with his mother is established on the evidence. Where there have been the occasional problems with contact, the evidence satisfies the Court that the Father has acted appropriately.
The Court therefore concludes that the orders proposed by the Father are in the best interests of X. Those orders will be made.
The Independent Children’s Lawyer
The failure of the Independent Children’s Lawyer to provide written submissions is of concern to the Court especially in the circumstances where there was a divergence of proposals as between the Father and the Independent Children’s Lawyer. The evidence in this case concluded on 19 November 2019. The direction to file written submissions was made on 18 December 2019. The Independent Children’s Lawyer’s submissions were due no later than 5 March 2020. The Father’s submissions had been filed by 3 February 2020. The Mother’s failure to file written submissions by 21 February 2020 was the subject of correspondence from Chambers that was copied to the Independent Children’s Lawyer. There appears no reasonable explanation for the Independent Children’s Lawyer’s failure to act between 21 February 2020, which was the last date for the Mother to file her submissions, and 5 March 2020 when the Independent Children’s Lawyer’s submissions were due. Even then, the time for filing was extended to 10 March 2020. The responsibilities placed on an Independent Children’s Lawyer are onerous. It is a very important role to play. This issue will need to be referred to the Legal Aid Commission of New South Wales and a copy of the anonymised Reasons for Judgement will be sent by Chambers to the same.
Postscript
The Independent Children’s Lawyer’s written submissions were received late on 17 March 2020, however were due on 10 March 2020. By then these Reasons for Judgment has been completed. Accordingly, the Court chose not to read the Independent Children’s Lawyer’s submissions and proceeded to deliver these Reasons for Judgment.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 March 2020
Schedule One
Minute of order proposed by the Father
That the Father shall have sole parental responsibility for the child X born in 2010.
That the child shall live with the father.
Commencing from the date of these Orders and until he is 12 years of age in 2022, the child shall spend supervised time with the mother as follows:
a. Each alternate Sunday from 10:00am until 2:00pm
b. On Christmas Day from 12:00pm until 4:00pm
c. On Mother’s Day from 12:00pm until 4:00pm
d. At other time as agreed between the parties in writing.
That the supervisors set out in Order 3 shall be the father and/or his nominee or nominees.
-The father adopts the ICL’s proposed Orders 6 to 14 inclusive
Minute of order proposed by the Mother
That the parties have equal shared parental responsibility of the child namely:
a.X born in 2010.
That the child live with the father.
That the mother spend time with the child for the first 1 month from the making of these orders as follows:
a.Each alternate Sunday from 9am to 5pm;
b.On Christmas Day 2019, from 2pm until 8pm;
c.At other time as agreed between the parties in writing from time to time.
That the mother spend time with the child after the expiration of order 3 above for a further period of 3 months as follows:
a.Each alternate weekend from 10am Saturday to 5pm Sunday
b.The first half of the short NSW school holidays;
c.At other time as agreed between the parties in writing from time to time.
Thereafter, the mother spend time with the said child as follows:
a.Each alternate weekend from after school on Friday to 5pm Sunday;
b.During one half of each New South Wales school vacation period as agreed or in the absence of agreement during the first half of the same in odd numbered years and the second half of the same in even numbered years;
c.During Christmas as follows:
i.In 2020 and each alternate year thereafter from 12.00pm, Christmas Eve until 12.00pm, Christmas Day, and
ii.In 2021 and each alternate year thereafter from 12.00pm, Christmas Day until 12.00pm, Boxing Day.
d. During Easter as follows:
i.In 2020 and each alternate year thereafter from 3.00pm Easter Sunday until 5.00pm, Easter Monday, and
ii.In 2021 and each alternate year thereafter from conclusion of school/2.30pm Easter Thursday until 3.00pm Easter Sunday;
e. On Mother’s Day from 10.00am until 5.00pm. In the event Father’s Day falls on a weekend when the child is spending time with the mother, she shall return the child to the father at 10.00am on Father’s Day;
f. On the birthday of the child as follows:
i.If a school day from conclusion of school until 5.30pm, and
ii.If a non-school day from 10.00am until 2.00pm;
g. Otherwise as agreed.
That for the purpose of the child spending time with the mother pursuant to orders above, the father provides the child to the mother at the commencement of her time and the mother then returns the child back to the father at the conclusion of her time.
That each party shall be entitled to communicate with the child by telephone on a reasonable basis whilst in the care of the other party and, for such purpose, each party shall ensure:
a. The child is available to receive such call;
b. The child is afforded privacy during such call, and
c. That they do not interfere in such call.
That each party do all acts and things and sign and execute all documents necessary to authorise any school at which the child attends or any medical practitioner upon whom the child attends to provide all requested information in respect of the child to the other party and to discuss all issues relating to the wellbeing of the child with the other party.
That each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with each of the parties the child’s school attendance and progress, furnish reports, photos and copies of correspondence, newsletters or other material produced by the school and distributed to the parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
10.That each party shall be entitled to attend all school events to which parents are invited to attend such as parent teacher interviews, school concerts, assemblies, prize giving’s and the like.
11.That each party shall keep the other advised as to significant medical, educational or other issues in respect to the child.
12.That each party be and is hereby restrained from denigrating the other party or any member of the other party’s family to or in the presence of the child and shall not allow any other person to engage in such behaviour to or in the presence of the child.
13.That each party shall advise the other party and keep the other party advised as to their current residential address and contact telephone numbers and advise the other party of any changes to these details within 24 hours of such change occurring.
14.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Minute of order proposed by the Independent Children’s Lawyer
Parental responsibility
That the father shall have sole parental responsibility for the child X (“the child”) born in 2010.
Live with order
That the child shall live with the father
Spend time with orders
Commencing from the date of these orders and until he is 12 years of age in 2022, the child shall spend supervised time with the mother as follows:
(b)Each alternate Sunday from 9.00am until 5.00pm
(c)On Christmas Day from 2.00pm until 8.00pm
(d)On Mother’s Day from 9.00am until 5.00pm
(e)At other times as agreed between the parties in writing.
The supervisors as set out in Order 3 shall be the father and/or his nominee or nominees.
Upon the child turning 12 years of age in 2022, the child shall spend unsupervised time with the mother as follows:
(b)Each alternate Sunday from 9.00am until 5.00pm
(c)On Christmas Day from 2.00pm until 8.00pm
(d)On Mother’s Day from9.00am until 5.00pm
(e)At other time as agreed between the parties in writing.
Changeover order
That for the purposes of changeover the parties shall meet at City A Park.
Injunction
That the mother do all things necessary to ensure that Mr B is restrained by injunction from consuming alcohol or any illicit substance while the child is in their care or for a period of 24 hours prior to the child coming into their care.
Health related orders
That the father will continue to facilitate the child’s attendance upon his treating medical practitioners and health professionals
That the mother shall continue to regularly engage with and follow the directives of her treating medical and mental health professionals
Notification of health and other relates matters:
That the father shall ensure that he keeps the mother informed as soon as it is reasonably practical of:
a)Any medical problems or illnesses suffered by the child whilst in each parent’s care;
b)Any medications that have been prescribed for the child;
c)Any specialist medical appointments;
d)Any significant social, school or religious functions which the child is to attend;
e)The details of any sporting body(ies) that the child is involved in;
f)His residential address and particulars of others who may reside with the child;
g)Any other important matter relevant to the welfare of the child.
That the father shall provide to the mother full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the child.
Education & Extra Curricular Activities
That each parent is entitled to attend all events involving the child including, but not limited to:
a)Sporting fixtures;
b)Extracurricular activities that allow for each parent attendance or participation;
c)School functions and events that allow for parental attendance or participation.
That both parents be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
Change of accommodation
That in event that either party changes their accommodation, that they shall provide the other party with details of their new address as soon as practicable, but no later than forty-eight hours moving into new premises.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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