Hamidi and Allaway & Anor
[2016] FamCA 447
•7 June 2016
FAMILY COURT OF AUSTRALIA
| HAMIDI & ALLAWAY AND ANOR | [2016] FamCA 447 |
| FAMILY LAW – CHILDREN – With whom the children live with – With whom the children spend time with – Parental responsibility – Best interests of the children – Department of Family and Community Services involvement with the youngest child – Expert evidence in relation to the mother’s mental health and parental capacity and associated risks to the children – The need to protect the children from risk of harm by the mother an overwhelming consideration – Orders appropriate to the children’s ages – Children to live with the father and supervised time with the mother or as agreed subject to consideration of the children’s ages – Father to hold sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother left the court precincts on the date of the hearing – Where the mother has been afforded procedural fairness – Where the matter proceeded to an undefended final hearing. FAMILY LAW – COSTS – Father granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in relation to a vacated hearing date. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Federal Proceedings (Costs) Act 1981 (Cth) s 10 |
| Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 George & George [2013] FamCAFC 182 Goode & Goode[2006] FamCA 1346 Marvel & Marvel (No. 2)[2010] FamCAFC 101 Mazorski & Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Tyson (No.2) (1993) 16 Fam LR 795 |
| APPLICANT: | Mr Hamidi |
| RESPONDENT: | Ms Allaway |
| INTERVENOR: | Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall |
| FILE NUMBER: | PAC | 3361 | of | 2014 |
| DATE DELIVERED: | 7 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 24 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Judge |
| SOLICITOR FOR THE APPLICANT: | Ryan & Seton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| COUNSEL FOR THE INTERVENOR: | Mr McGorey |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor's Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall |
Orders
That the father have sole parental responsibility for the children D born … 2001, B born … 2003 and E born … 2013 (“the children”).
That the children reside with the father.
That the children spend time with and communicate with the mother as agreed between the mother and father in writing and in default of agreement as follows:
(a) As to the child E for two hours per month supervised at a Contact Centre with such time as far as possible to be in the company of the older children D and B provided that when E reaches the age of 12, with the father’s agreement there be the option of E’s monthly two hour supervised visit with the mother occurring outside of the Contact Centre, and supervised by an adult person acceptable to both parents, who might be one or both of the older children D and B or failing agreement by a contact supervision service such as H Centre and provided that provided that from age 14 the child be able to attend only each alternate monthly visit at her discretion.
(b) As to the older children D and B for two hours per month supervised by a person agreed by the mother and father and failing agreement by a contact supervision service such as H Centre with such time as far as possible to be concurrent with the child E’s time with the mother and provided that from age 14 (including D currently), each child be able to attend only each alternate monthly visit at their discretion.
(c) That the cost of supervision be shared equally by the mother and father.
That the mother and father do all things necessary to:
(a) contact the I Contact Service, … (“the Contact Centre”) within 14 days and arrange an appointment for assessment for suitability for supervision of the time the child E spends with the mother;
(b) attend the assessment;
(c) comply with any appointments made by the Contact Centre for supervised time;
(d) comply with all reasonable policies and rules of the Contact Centre; and
(e) comply with all reasonable requests or directions of the staff of the Contact Centre.
That if after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the child E is to have contact with the mother at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
That the father must deliver the child E to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
That in the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 3(a) then contact shall occur at the times that are offered by the Contact Centre.
That the parties or either of them are to attend and undertake any course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
That the time the child E spends under Order 3(a) is to be supervised by the Contact Centre and each of the parents must pay one half of any reasonable fees for the supervision on each occasion of supervision.
That the mother must not attend the Contact Centre or its vicinity before the time with the child E is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child E is to end.
That the period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
From the age 16, each child be able to spend time with the mother outside of the supervised times, for a maximum of one day per fortnight and not including overnight time, and in a manner determined by the child in collaboration with the mother, including the setting of the time and the presence of other persons such as one or both of the half-siblings with such time only to be initiated by the child, not by the mother, and to be planned in transparent collaboration with the father.
That the father use his best endeavours to ensure that the childrens’ supervised time with the mother be proximate to and if possible on special days such as Mother’s Day, the mother’s birthday, the children’s birthdays and the Christmas festive period and in the event that it is not possible for the children to spend time with the mother on such special days then the father facilitate the children having telephone contact with the mother on those days.
That subject to the father’s agreement the children’s older half-brother and half-sister be at liberty to attend on occasions when the children are spending time with the mother in accordance with these orders.
That the mother and father be restrained from consuming or being under the influence of illicit drugs within 12 hours of caring for or spending time with the child E.
That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child E.
Federal Proceedings (Costs) Act 1981
That the applicant father is granted a costs certificate under the provisions of s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the vacated hearing on the 20 May 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamidi & Allaway and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3361 of 2014
| Mr Hamidi |
Applicant
And
| Ms Allaway |
Respondent
And
Department of Family and Community Services
Intervenor
REASONS FOR JUDGMENT
Context
On 18 July 2014 the applicant father commenced parenting proceedings in relation to the children D born in 2001, B born in 2003 and E born in 2013.
In that application he sought orders that he have sole parental responsibility for the children, that the children live with him and that the children spend time with and have contact with the mother as may be agreed between he and the mother from time to time.
The father is presently aged 39 and the mother aged 42. The mother and father commenced cohabitation in 1995 when the father was 18 and the mother 21 and separated in early 2013. The mother and father did not marry.
The mother has two other adult children from a previous relationship.
Subsequent to separation the father formed a relationship with Ms C. Ms C and the father continue their relationship and she regularly visits the father’s home and spends time with the children.
The father has significant support from his brother and sister-in-law who live in adjoining premises.
The relationship between the mother and father was volatile with various periods of separation during which the father would be responsible for care of the older two children. Subsequent to final separation the mother spent time with the older children by arrangement with the father until about April 2014 at which time the father stopped time with the mother because of his concerns for the children’s safety.
The youngest child E was born after separation and remained in the mother’s care for a period. On 29 May 2014 the father was contacted by case workers from the Department of Family and Community Services who informed him that the child E had been taken to J Hospital and had been removed from the mother’s care because of significant risk of harm. The mother had been admitted to psychiatric care. The risks of harm were identified to the father as the mother’s taking of illicit drugs and her mental health.
The child was placed in the father’s care by the Department, which later made an application on 25 June 2014 in the Children’s Court at Parramatta for care orders in relation to the child.
All three children have been in the full-time care of the father since this time.
The Litigation
After the father commenced proceedings in this Court interim orders were made on 21 July 2014 that the older children live with him and the mother was restrained from having any contact with the children. The older children have resided with the father since that time and have had no contact with the mother.
The Department has remained engaged in relation to the youngest child E and has facilitated the child having some supervised time with the mother.
On 3 October 2014 orders were made in this Court that the father and the Department have shared parental responsibility in relation to the child E and that the child live with the father and have supervised time with the mother. The Department did have at that time some reservations as to the father.
The Department thereafter has continued to be engaged in relation to endeavouring to provide supervised time with the child to the mother.
On 3 October 2014 the mother was ordered to file a response to the father’s parenting application that day. Notwithstanding the mother did not file a Response until 11 November 2014 with that response seeking orders that the mother have sole parental responsibility for the children and that the children live with her.
On 15 December 2014 orders were made for the appointment of Dr K as Single Expert for the purposes of preparing a report to assist the Court. The cost of the report was met as to the sum of $8800 by the father and as to the balance of $4400 by the Department with the ultimate liability for those costs reserved to final property settlement as between the husband and wife.
On 9 November 2015 the Single Expert report from Dr K was released to the father, the Independent Children’s Lawyer (“ICL”) and the Department. By reason of the recommendations in the report, proceedings were adjourned to 25 November 2015 in the expectation that on that day the mother would be assisted by her adult son.
Procedural Fairness
Subsequently on 25 November 2015 the Single Expert report was released to the mother in the company of her son. However the mother after the release of the report to her failed to return to the Court when the matter was next called on.
It was ordered that proceedings be listed for undefended hearing on 26 February 2016 with directions being made for the filing and service of documents by the father and the Department. The ICL was ordered to notify the mother by ordinary prepaid post of the orders made and inform her that in the absence of there being any appearance by or on her behalf on 26 February 2016 the father’s application for parenting orders would proceed to hearing on an undefended basis. The ICL notified the mother by letter dated 9 December 2015.
On 26 February 2016 when the matter was listed for undefended hearing the mother unexpectedly appeared unrepresented. On the mother’s application the Court made the following orders:
a)That proceedings be adjourned for hearing to 20 May 2016;
b)The mother file and serve one consolidated affidavit of her evidence in chief by no later than 6 May 2016;
c)That the mother file and serve a minute of proposed parenting orders sought by her as to the allocation of parental responsibility and the children’s time with her;
d)That the father and the Department forward by ordinary prepaid post to the mother a copy of their trial affidavits by no later than 11 March 2016;
e)That in default of the mother complying with these orders the matter proceed to undefended hearing on 20 May 2016;
f)It was noted that for the purposes of hearing the Single Expert Dr K was not required for cross examination;
g)It was further noted that the issues for determination at hearing were firstly the allocation of parental responsibility for the children and the children’s time with the mother and under what conditions if any such time should be; and
h)It was further noted there was no issue that the children will reside primarily with the father subject to orders that may or may not be made as to the children’s time with the mother.
On 20 May 2016 the Court was unable to hear the matter and with all parties in attendance the matter was stood over to 24 May 2016 for hearing.
On 24 May 2016 the mother again appeared in person. Her appearance was agitated and dishevelled. At 10.32 am the mother left the precincts of the Court and did not return.
The mother was aware that the matter was listed for hearing. In all of the circumstances it was appropriate that the matter proceed to hearing on the issues in dispute. The matter proceeded to undefended hearing.
At the conclusion of the undefended hearing reasons for judgment were reserved.
At hearing the father relevantly sought orders (Exh B):
a)That he have sole parental responsibility for the children;
b)That the children live with him;
c)That the children spend time with the mother on the first Sunday of each calendar month for a period of two hours as a supervised contact centre;
d)That he facilitate telephone contact between the children and the mother on various special days;
e)That the mother be restrained from approaching the residence of the father and/or the children, any workplace of the father, any school attended by the children, approaching the father, the father’s partner or the children in a public place or contacting the father, the father’s partner or the children except in accordance with orders;
f)That the father and mother each be restrained from consuming illicit substances while the children are in their care and from making critical or derogatory remarks about the other or the other’s family in the presence or hearing of the children.
Otherwise the father’s counsel made application for the issue of a costs certificate in relation to 20 May 2016 on which date the Court was unable to hear the matter by reason of a judicial illness. Judgment was reserved in relation to that application.
Otherwise it was ordered that any application for costs by the father as against the respondent mother be by way of an Application in a Case filed within 14 days and supported by affidavit.
The Single Expert Report
The mother’s mental health
The Single Expert provides a useful summary of the objective evidence as to the mother’s psychotic symptoms and behaviour:
93. Information from multiples sources (in particular police records and hospital/ community mental health team records, in addition to CS records) suggests that since May 2014 the mother has experienced recurrent decompensations into acute psychotic symptoms, which have caused marked disruption to maternal function, and have placed herself and others at acute risk. In addition, there have been persistent subacute symptoms of psychotic illness between these acute episodes, which have caused more ongoing dysfunction and relational harm and risk.
93.1. The CS document dated 11th July 2014 attached as Annex A to the father’s affidavit of 16th July 2014 describes the mother “running in and out of traffic” on 29th May 2014, calling police “leprechauns”, and reporting that [L] was locked in the boot of her car, dead. It is concerning that at that time the mother had a belief about the death of her infant child, but mis-named the child as [L], and was not able to act protectively even based upon that belief. It is also concerning that at that time, the infant was found to be at home alone, with the door unlocked, in a distressed state, in a squalid context.
93.2. The [Suburb M] hospital staff on 30th May 2014 described the mother in the hospital room showing “persistent deranged behaviour”, pacing around the room, mumbling incoherently, pointing at the wall, and not responding to questions. She required intravenous sedation to allow for a CT scan of her head, which proved normal.
93.3. The half-sister [L] called police to the mother’s home on 6th June 2014 because the mother was angrily accusing [L] of stealing various things from her. This behaviour in the mother of accusatory aggression based upon persecutory ideation is equivalent to that described by staff of the [Suburb M] mental health unit in August 2014, suggesting likely persistent psychotic symptoms in the mother at that time.
93.4. CS workers visiting the maternal home on 20th June 2015 found the home to be “in disarray”, suggesting ongoing disorganisation and dysfunction in the mother at that time. A police welfare check on 9th June had found things to be reasonable, so this suggests a pattern of fluctuations and rapid deteriorations in maternal function.
93.5. On 11th July 2014, pathology staff told CS that the mother had presented to them, accusing the pathology staff of tampering with her results. I think it likely that these accusations arose from delusional persecutory ideation.
93.6. Police who spoke with the mother outside the father’s home on 14th July 2014 when she had attended seeking school uniforms for [B] found that it was “difficult to get a word in”.
93.7. CS staff visiting the mother and [B] at the mother’s home on 13th July 2014 note that the mother “spoke without break for some time”, and “very quickly in an agitated manner”, and behaved in an intrusive and irritably defensive manner. The [N School] staff told CS on 15th July 2014 that the mother was at the school and “appears agitated”. CS staff note that on 18th July 2014, the mother was “aggressive and abusive” to the principal of [Suburb F Public School]. The mother was described as just talking, in a manner that the principal could not interrupt. These observations by various persons suggest to me that the mother remained unwell during this period.
93.8. On 18th July 2014, [B] told CS staff that she knows when mum is sick, because the mother is cleaning the house, and not getting enough sleep.
93.9. On 25th July 2014, the mother was observed to be agitated at a contact visit with [E], and “walking around frantically with the child”. She accused the case worker of taking bribes from the father, and spoke of herself being drugged, and the child being drugged. She was “very agitated” and “ranting verbally”. Police had to be called to effect the return of the child to the supervisor. I think it likely that the mother’s accusations arose from persecutory delusional ideation.
93.10. On 29th July 2014, according to CS notes, a second pathology provider declined to be involved with the mother because of her behaviour at testing appointments.
93.11. On 1st August 2014, a driver in a car accident in [G Town] blamed the accident on having had to brake suddenly, to avoid the mother, who had been running across the road.
93.12. On 1st August 2014, police were called to a park in [G Town], where the mother had been observed to “snatch” a child. Police found her to have “eyes glazed, pupils pinpoint, moving erratically, couldn’t stand still”. The parent of a 3 year old child confirmed to police that the mother had picked up the child and walked off with the child, then when the parent had yelled out, the mother had put the child down.
93.13. On 3rd August 2014, the mother was reported (to police) to be marching up and down the road, interfering with traffic. Police then observed her to be taking large steps, talking to herself, and making hand gestures to the sky. She said, “I am getting guidance from God, and he is telling me to do things”. I think it likely that the mother was experiencing command auditory hallucinations.
93.14. The mother was admitted to the mental health unit at [Suburb M] hospital for 32 days, from 3rd August 2014 to 3rd September 2014 (I note that she spent the last week on leave). She remained acutely unwell on the ward for at least the first 10 days of this admission. I note that urine and blood testing at hospital was negative for stimulant drugs, being positive for benzodiazepines (sedative/ calmative drugs) only. These persistent symptoms and negative drug testing suggest a primary psychotic illness, rather than only drug intoxication or drug-induced psychosis.
93.15. On admission to the unit, the mother was described as angry, irritable, agitated, with thought disorder, elevated mood, grandiosity, and insightless. She remained “manic, hostile, with severe agitation” for some days.
93.16. The ward notes of 13th August 2014 state that the mother had been threatening other patients and staff, because she believed that they have done something. She was saying to other patients, “come on, hit me”. She was described as rude, swearing at staff and other patients. An example was that she had decided that another patient “ate my donut”, and proceeded to verbally assault that patient.
93.17. When the community mental health team spoke to the mother over the telephone on 5th September, she appeared OK, but when seen on 6th September, the mother described “no psychotic phenomena”, but was observed to show pressured speech and agitated and disorganised behaviour, suggesting to me that the mother had ongoing partially treated psychotic symptoms at that time.
93.18. According to CS communications with hospital staff, the mother was admitted to [O Hospital] mental health unit from 7th January 2015 until 2nd February 2015, for treatment of psychotic symptoms. She had been brought in to hospital by police, because of erratic behaviour, running in and out of traffic, and she had thrown a bottle of water at a service station attendant.
94. The mother’s psychotic symptoms and associated behaviour as described above, disrupted her capacity to care for the children, in particular [E], and at times placed the children, in particular [E], at acute risk. I note the following:
94.1. Police on 30th May 2014 describe finding [E] at home alone, in a soiled nappy, crying. There was a smell of urine, associated with many wet nappies on the upstairs bathroom floor. Syringes, blackened foil, and spoons were found in all rooms. There were used cigarettes on the floor. Wires hung down from the ceiling, and there were holes in the wall.
94.2. CS staff visiting the mother’s home (where the mother had been living with [E] in her care for the prior 2 weeks), described finding buckets around the house, with 10cm of water in them. In the bath was old bathwater, with what appeared to be infant human faeces in it. The home was “in disarray”, with dirty dishes, holes in the walls, and piles of clothing. The staff found a box of syringes in the master bedroom. The mother at that time told CS staff that she posed no risk to the child, and that the syringes were used for her to apply a self-tanning product. She declined to engage in the making of a safety plan.
As to the mother’s mental health, Dr K says:
86. The mother appears to have a psychotic disorder, present at least from May 2014, and evident recurrently since that time including in August 2014, January 2015, and on the day of interviews with myself in August 2015.
87. I think it likely that the mother has the DSM 5 diagnosis of Schizophrenia, that is a persisting psychotic disorder.
88. I note that the mother’s initial brief hospital admission in May 2014 appeared to be associated with stimulant intoxication, appeared to resolve rapidly, and was diagnosed a drug-induced psychosis.
89. But, subsequent relapses into psychotic symptoms in the mother were not clearly linked to stimulant drug use, and persisted for weeks rather than days, suggesting that the mother has developed a psychotic disorder that is existing independently of any intermittent drug use.
90. It is possible that the mother’s stimulant use in may 2014 was in part a result of the onset of psychotic disorder, with associated disinhibition and loss of judgement, rather than the stimulant use causing the psychotic disorder.
91. It is not uncommon for a psychotic illness initially diagnosed as drug-induced psychosis to progress to schizophrenia. The impact of this progression in terms of the mother’s prognosis is that whilst ongoing drug use will worsen the mother’s symptoms, abstaining from drug use will not guarantee a recovery.
92. It is possible that rather than schizophrenia, the mother may prove over time to have a diagnosis of bipolar disorder with manic episodes with psychotic features, or of schizophreniform disorder (the latter being a mix of schizophrenia and bipolar disorder). The differentiation between these diagnoses tends to become clear over a number of years. The differentiation is not central to the matters before the court, as all are persistent psychotic disorders, which carry significant burden of dysfunction and of risk, particularly in the context of the mother’s associated personality vulnerabilities, discussed below...
…
94. The mother’s psychotic symptoms and associated behaviour as described above, disrupted her capacity to care for the children, in particular [E], and at times placed the children, in particular [E], at acute risk. I note the following:
94.1. Police on 30th May 2014 describe finding [E] at home alone, in a soiled nappy, crying. There was a smell of urine, associated with many wet nappies on the upstairs bathroom floor. Syringes, blackened foil, and spoons were found in all rooms. There were used cigarettes on the floor. Wires hung down from the ceiling, and there were holes in the wall.
94.2. CS staff visiting the mother’s home (where the mother had been living with [E] in her care for the prior 2 weeks), described finding buckets around the house, with 10cm of water in them. In the bath was old bathwater, with what appeared to be infant human faeces in it. The home was “in disarray”, with dirty dishes, holes in the walls, and piles of clothing. The staff found a box of syringes in the master bedroom. The mother at that time told CS staff that she posed no risk to the child, and that the syringes were used for her to apply a self-tanning product. She declined to engage in the making of a safety plan…
…
102. The mother’s presentation at interview was consistent with her experiencing a psychotic illness. This was not immediately apparent, and her agitation and reactivity might have been put down to her personality vulnerability and the stressful context.
103. But, as the day continued, it became clear that the mother was struggling with delusional thinking…
…
118. At interview, the mother denied any history of significant past or current use of illicit drugs.
119. I think it likely that the mother has practiced intermittent benzodiazepine abuse, as a means of attempting to manage her own emotional distress. Such abuse can functionally incapacitate the mother in the short term, through inducing disinhibition, drowsiness or deep sedation. It tends to worsen emotional distress in the medium to long-term, and disrupt the development of healthy coping mechanisms.
120. At interview, the mother described using excess benzodiazepines, obtained through a friend and friend’s doctor.
121. The mother said, “I was high strung… physically… I got… like… I was on Valium for a while… I went to my friend’s doctor… he gave her something to sleep… he suggested I try that… just like… and I got some off her… they were blue… she had a large box of it… I don’t have any more… I haven’t been back to him”.
122. Intermittent maternal self-regulated use of benzodiazepines would place [E] at significant risk in maternal care, because of the risk of maternal oversedation and hence inadequate monitoring and protection and care of the child.
123. I think it likely that the mother has engaged in intermittent stimulant abuse, at least since May 2014. It is possible that the mother has developed an ongoing stimulant dependence, with regular heavy daily use, but I think this unlikely and think it more likely that the mother’s stimulant abuse has been an exacerbating factor for the mother’s psychotic disorder (and one that markedly increases risk of sudden and absolute functional decompensations), but not the driver of that disorder.
124. With regard to stimulant drugs, the mother denied any use prior to the father leaving her for his current partner. After that, “I tried… I did try… Ice… it was left in my home, and my son went away…I have no memory of what happened… I was in the house with my daughter… the neighbours were coming, asking, can they buy the house… coming into the house”, and “I went over to the pub, and spoke to the guys and girls in the alleyway… I don’t even remember how I got home…when Alan was away, I talked to a guy and girl, and they came over”.
125. I asked again about the mother having “tried” Ice. The mother said, “well I thought that after I went into hospital… I was found running on a road… but I don’t use it… I do drink ‘Red Bull’ [a caffeine drink]”.
126. When the mother was seen with the children, she said to them, “On one occasion, I became weak… I succumbed to using a drug… because I felt that there was no way out… and then I went in hospital, and [E] came to you… but I don’t take drugs… that was weak of me”…
Dr K was of the opinion:
133. It is my impression that the mother has longstanding significant personality dysfunction, with borderline and histrionic (DSM 5 “cluster B”) personality traits...
And:
139. In terms of histrionic personality style, the mother can show excessive emotionality and attention-seeking…
And:
141. The mother has shown an overall personality immaturity expressed as a coercive hostile dependence upon others, which has been perpetuated in the long term by the ambivalent accommodation of others (including the father, the two half-siblings, and the older 2 subject children) to the mother’s needs…
And:
154. I have described above two pathologies in the mother: firstly, the psychotic illness schizophrenia, and secondly personality dysfunction. At one extreme, it is possible that the mother has been burdened with a longstanding undiagnosed psychotic and/or mood disorder and that her apparent personality dysfunction has arisen from the symptoms of that disorder, including the symptoms of paranoid ideation and instability of thought and mood. At another extreme, it is possible that the mother’s main difficulty has been that of a severe personality disorder, and that her psychotic illness is a more recent addition, coming on only since mid-2014 and perhaps precipitated by dysfunctional coping mechanisms including stimulant drug use.
155. The truth will lie between these two extremes. My impression is closer to the latter, i.e. that the mother has had a longstanding personality disorder with associated genetic predisposition to mood instability and persecutory ideation, then has decompensated into a frank psychotic illness with the triple stress of the pregnancy and birth of [E], the separation from the father and his repartnering, and the father’s withdrawal of financial and material support from her.
156. The prognosis for symptomatic and functional recovery for the mother is poor.
157. If the mother had the personality strength that allowed her to take responsibility for her own circumstances and to constructively engage in treatment and rehabilitation, then her prognosis might improve. But, she has not shown such personality strength to date, and I feel is unlikely to do so.
Parental capacity
As to the mother’s parenting capacity, the Single Expert opined:
189. In my view, the mother does not have the capacity to provide for the children’s emotional, intellectual, relational or developmental needs. In fact, I observe that the mother’s behaviour can be counterproductive and damaging to the children’s development. This is true in the context of the mother’s current psychotic illness, which disrupts her basic capacities, but also in terms of the mother’s longstanding personality dysfunction and personality immaturity, which has led to a longstanding experience in the two older girls of maternal instability and self-focus. This maternal behaviour has resulted in the parentification of the girls, that is the girls habitually being disposed to carefully consider and manage the mother’s needs, rather than expecting the mother to reliably meet their needs.
As to the father’s capacity, the Single Expert concluded:
306. The two older subject children when speaking of the father made recurrent reference to their lifelong experience of his reliable presence, care, and availability for and attention shown to them.
307. I asked [D] whether she had any fears or worries for [E], in the father’s care.
308. [D] said, “No… dad, as a person, is very unselfish… when I was growing up, he’d give up going out and partying, to care for us. Now, he has a nanny, so he does go out once in a while, but [E’s] first for him”.
309. My impression is that the father is richly able to meet the children’s basic needs for food, shelter and protection from harm, and also their more complex emotional, intellectual, relational and developmental needs.
310. Interviewed alone, I found the father to be empathically attuned to the children’s emotional state, sensitive to their past adverse experiences, very mindful of their current needs, and very respectful of them as separate persons, and of their love for the mother.
311. When I saw the father with the 3 girls, their interactions were warm and reciprocitous. Each older girl was able to sit separately from the father and to tell her own story, but with interest and encouragement from the father, and elaboration provided by him which showed a respectful awareness of their day to day lives. The girls appeared to be positively engaged in schoolwork, friends, day to day life at home, and activities such as [B’s] netball.
312. The father and two older girls were very warmly attentive to [E], and [E] appeared secure in their care. The two girls did speak warmly of playing with [E], but most of their focus was appropriately on their own challenges and activities.
313. I noticed that the father took primary responsibility for [E].
Risk to the children
As to the issue of emotional and physical abuse of the children the Single Expert concluded:
369. In my view, these risks are considerable, and are discussed above.
370. The risks to [D] and [B] are of neglect of their material and emotional needs, of parentification and of partisan distortion of their thinking about the father and thus their sense of self. There are developmental risks associated with disruption of ordinary life processes such as schooling and peer connections, because of maternal instability and low function. There is a risk of exposure to physical harm through maternal drug use or association with persons who use drugs.
371. The risks to [E] are the same, but amplified by [E’s] young age and greater need. [E] is at risk of death through neglect or misadventure in maternal care.
372. The above risks are significant based upon maternal personality dysfunction alone, but are amplified (in particular the serious risks to [E]) by the mother also experiencing a psychotic disorder.
The children’s wishes
After interview with the older children who both expressed guarded wishes to have some time with the mother, the Single Expert said:
413. I feel that it is appropriate to respect and give weight to the children’s expressed wish not to carry the full burden of the decision about parenting matters, and for the court to decide mostly based upon the children’s needs, rather than their “wishes”.
414. In my view, considering the degree to which the children feel responsible for maternal wellbeing, and considering the coercive nature of maternal bids for the children’s loyalty and time, and considering the serious risks posed to the children’s wellbeing and development in maternal care, then it is appropriate for the court to prioritise a consideration of [B’s] needs over her stated ambivalent wishes to live with or spend substantial time with the mother.
The children’s time with the mother
The Single Expert concluded:
415. The disadvantages of the children spending substantial time with the mother, and unsupervised time with the mother, have been outlined above, and in my view these substantially outweigh the advantages of the same.
416. There are advantages to the children spending regular, intermittent, contained and supervised time with the mother, these being that such visits maintain a thread of connection and mutual knowing with the mother, and meet the children’s need to experience the mother’s idealising love and to show love to the mother and check in on the mother. The disadvantages and would be minimised by a containing context, and strong orders that set firm boundaries on the nature and extent of these visits.
The Single Expert’s concise recommendations were:
427. If the court finds that it is likely that there is risk to the child in the mother’s care, then the children’s time with the mother be limited or constrained sufficiently to manage that risk. My view is that what risk that does exist is managed by the recommendations outlined below.
428. If the court finds that the children face indirect risk through maternal disruption of paternal wellbeing, security and agency, the management of this risk take priority over maternal freedoms or sensibilities, and even over the promotion of the child-mother relationships. My view is that what risk that does exist is managed by the recommendations outlined below.
429. The father have sole parental responsibility for major decisions such as medical, schooling and religious matters. In the exercise of such responsibility the father keep the mother informed of the decision made and ensure the mother is provided with all relevant information pertaining to that decision.
430. The children live with the father.
431. The children spend time with the mother that is:
431.1. regular but infrequent, and occurs in a supervised and contained environment. The purpose of this time is to maintain a thread of connection between the children and mother, not to maintain an attachment relationship. By an attachment relationship, I would mean a relationship where the children are reliant upon the mother.
431.2. The children attend this time together, but be given some choice and flexibility about time with the mother, as each grows older.
431.3. There be capacity for the supervising adult system to cease or limit contact during any period when the mother was not able to work within the boundaries of that contact, then for this time to be recommenced when/if the mother was able to demonstrate a renewed capacity to work within the boundaries of contact.
The Independent Children’s Lawyer
The ICL substantially supported the father’s position and sought orders as follows (Exh C):
a)That the father have sole parental responsibility for the children;
b)That the children live with the father;
c)That the children spend time with the mother as agreed between the father and mother or failing agreement:
i)As to the child E for two hours per month supervised as facilitated by the Department;
ii)As to the older children for two hours per month supervised by a person agreed by the mother and father and failing agreement by a contact supervision service such as H Centre; and
iii)That the cost of supervision be shared equally by the mother and father.
The ICL sought a notation that by reason of the ages of the older children, D and B, that it was inappropriate for the children to spend time with the mother in a contact centre and it is intended that such time with the mother be an activity-based contact.
The Department of Family and Community Services
The Department sought to be heard only in relation to the youngest child E who at the time of hearing was not quite three years of age.
In summary the Department sought the following orders:
a)That the father have sole parental responsibility for the child E;
b)That the child E reside with the father;
c)That the child E have time and contact with the mother in accordance with the recommendations of the Single Expert that were discussed in the following terms:
431. The children spend time with the mother that is:
431.1. Regular but infrequent, and occurs in a supervised and contained environment. The purpose of this time is to maintain a thread of connection between the children and mother, not to maintain an attachment relationship. By an attachment relationship, I would mean a relationship where the children are reliant upon the mother.
431.2. The children attend this time together, but be given some choice and flexibility about time with the mother, as each grows older.
431.3. There be capacity for the supervising adult system to cease or limit contact during any period when the mother was not able to work within the boundaries of that contact, then for this time to be recommenced when/if the mother was able to demonstrate a renewed capacity to work within the boundaries of contact.
432. An example of the same might be that:
432.1. The children spend time with the mother on one occasion per month, for 2 hours, in a contact centre.
432.2. The mother be expected to meet the normal behavioural requirements of the contact centre, including that she cooperate with timings and processes of changeovers, and not present under the influence of substances.
432.3. If the mother does not meet such requirements or respond to direction to do so, the contact centre notify both parents, and time be suspended until the mother can provide a letter from a psychiatrist, that attests to her capacity to work within those limits.
432.4. The mother be able to attend with the half-brother, and perhaps also with the half-sister, if agreed by the father. This is likely to be of benefit to the mother, and to the subject children, as the subject children love seeing the half-siblings, and the half-siblings will help contain the mother. The risks of the half-siblings seeking to coerce the subject children into more time with the mother will be mitigated by strong orders
432.5. From age 14 (including D currently), each child be able to attend only each alternate monthly visit, at their discretion.
432.6. From age 16, each child be able to spend time with the mother outside of the supervised times, for a maximum of one day per fortnight and not including overnight time, and in a manner determined by the child in collaboration with the mother, including the setting of the time and the presence of other persons such as one or both of the half-siblings. Such time only to be initiated by the child, not by the mother, and to be planned in transparent collaboration with the father, also.
432.7. From when E reaches the age of 12, there be the option (only if there is paternal agreement) of E’s monthly 2 hour supervised visit with the mother occurring outside of the contact centre, and supervised by an adult person acceptable to both parents, who might be one or both of the (by then young adult) older subject children.
433. I would recommend that special days such as Mother’s Day and birthdays be celebrated on the closest regular scheduled visit, rather than there being separate visits on those special days. There might be telephone communication on such special days.
434. I would not recommend regular telephone contact, but there might be an arrangement for telephone contact on special days such as Mother’s Day, Christmas and birthdays. It may be best for the father to call the mother at a set time on those days, and put the children on the telephone, so that father is able to manage the process, and the order does not create licence for broader maternal intrusion upon family life. The telephone should be on speaker-phone or Skype or equivalent could be used, with all children joining in the conversation, and helping to manage it for E. The father should have capacity to end the call if he judges that its content is proving harmful or inappropriate for the children or one of them.
435. In general, it can be awkward for children to continue to spend time in the child-like context of a contact centre as they grow into late childhood and adolescence. But, I feel that this context is appropriate for this family because:
435.1. Both older girls spoke of seeking and valuing such child-like connection with the mother, such as her painting their nails, or their playing or watching a movie together.
435.2. Both older girls see a significant aspect of their role in contact to be facilitating the mother’s time with E, who is still very young and will value the contact centre context during her childhood.
435.3. There is a necessity for adult containment, identified by myself and both girls. I note that the CS worker recently had to call police to facilitate termination of a contact visit, and the mother had difficulty terminating her time with E at my rooms. In my experience, the contact centre environment will provide more containment than a supervisor in a public place or a home, even though they do not provide absolute security.
d)That the mother and father be restrained from consuming or being under the influence of illicit drugs within 12 hours of caring for or spending time with the child E; and
e)That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child E.
The Department did not seek to be involved in the ongoing supervision of the children particularly the child E in terms of the mother’s contact or time with the children. In effect the Department sought to end its engagement with the family.
It can be seen that the father, the ICL and the Department were almost at one in relation to the orders being sought.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(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).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
It is clear in this matter that the presumption will not apply by reason of the mother’s aberrant conduct and mental health issues that are indicative of this matter being resolved primarily by reason the mothers incapacity undertake such responsibility and the need to protect the children.
The discussion of the ‘best interest’ considerations below in the context of the matters above are only indicative of the father having sole parental responsibility. That order will be made.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 118 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The children’s relationships with both parents are overshadowed by the issues discussed above primarily the overshadowing spectre of the mother’s aberrant behaviour and mental health issues. The manner in which the children can have a meaningful relationship with the mother is clouded by her own conduct and the need to fashion orders protective of the children. This leads to the conclusion that in the present circumstances the children cannot benefit from time with the mother except in protective circumstances propounded by the father, the ICL and the Department.
It is otherwise clear that it is important for the children to continue in the primary care of the father.
Section 60CC(2)(b) – need to protect
This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed in the Single Expert report and above there are significant risk factors in exposing the children to the mother. Any relationship with her at present is problematic in the extreme.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
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; and
m) Any other fact or circumstance that the court thinks is relevant.
Regard has been had to each of the additional considerations particularly in the context of those discussed above. Once again the primary consideration as to the protection of the children is in effect determinative.
The only issues for determination are firstly parental responsibility that will be held by the father by reason of the matters discussed above and secondly the question of the children’s time with the mother.
It is proposed that orders be made for such time. They should be in protective terms.
It is in the best interest of the children that orders be made as set out at the forefront of these reasons for judgment.
Federal Proceedings (Costs) Act 1981
The father at the conclusion of the undefended hearing made application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981(Cth) in relation to the proceedings on 20 May 2016.
The Federal Proceedings (Costs) Act 1981 (Cth) relevantly provides in s 10:
10(1) [Application of section] This section applies to the High Court, the Federal Court, the Family Court, the Federal Magistrates Court and a court of a Territory.
10(2) [Incomplete proceedings] Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
10(3) [Discontinued proceedings] Subject to this Act, where –
(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings.
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
10(4) [Nature of certificate] the certificate that may be granted under subsection (2) and (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.
10(5)…
The Federal Proceedings (Costs) Act 1981 (Cth) makes provision for the limited reimbursement of costs incurred by a party in certain circumstances. The Court can, at its discretion, provide a certificate stating the Court’s opinion that it would be appropriate for the Attorney-General to bear some part of a party’s costs.
The grant or refusal of a costs certificate is entirely discretionary. In Tyson (No.2) (1993) 16 Fam LR 795 the Full Court said at 796:
The grant or refusal of a costs certificate under the Act is purely discretionary, and the Act itself lays down no guidelines for the exercise of that discretion. Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of the party’s total costs...all appear relevant for consideration by the court in the exercise of that discretion, as too is the fact that the funds to honour such a certificate must come from the public purse.
The application is made under s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth) in circumstances where on 20 May 2016 the proceedings then listed for hearing was unable to proceed by reason of my unexpected illness. The matter was stood over to 24 May 2016 for hearing.
It is patently clear that I was unable to continue with the proceedings as contemplated by s 10(2).
The father seeks an order in relation to counsel’s fees thrown way in the sum of $4,400 and solicitor’s costs of $770. Such sums seem entirely reasonable. The actual amount will be the subject of the Attorney-General’s determination as provided for in s 10(4) of the Federal Proceedings (Costs) Act 1981 (Cth).
An order for a certificate will be made accordingly.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 June 2016.
Associate:
Date: 7 June 2016
Schedule
A. Costs Certificate in respect of hearing unable to proceed on 20 May 2016
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
FILE NUMBER: PAC 3361 of 2014
| Mr Hamidi |
Applicant
And
| Ms Allaway |
Respondent
CERTIFICATE PURSUANT TO SECTION 10 OF THE
FEDERAL PROCEEDINGS (COSTS) ACT 1981
BEFORE: FOSTER J
DATE ON WHICH CERTIFICATE WAS GRANTED: 7 JUNE 2016
IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise payment under the Act
Section 10
to the Applicant MR HAMIDI in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the proceedings before the Family Court of Australia on 20 May 2016.
By the Court
The Honourable Justice Foster
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Expert Evidence
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Costs
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Remedies
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