Harding and Watson
[2016] FCCA 1999
•15 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARDING & WATSON | [2016] FCCA 1999 |
| Catchwords: FAMILY LAW – Contravention alleged of parenting orders – contravention Applications dismissed – mother suffers from Bipolar and Delusional Disorder – consent to S.102QB Order – contested parenting issues – mother to have treatment and supervised time with child if treatment successful. |
| Legislation: Family Law Act 1975, s.102Qb, Part VII |
| Cases cited: Re: (F Litigants in Person Guidelines) (2001) FLC 93-072 Collu v Rinaldo [2010] FamCAFC53 |
| Applicant: | MS HARDING |
| Respondent: | MR WATSON |
| File Number: | MLC 12820 of 2007 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 18, 19, 20 and 21 April 2016 |
| Date of Last Written Submission: | 9 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Smallwood |
| Solicitors for the Respondent: | Robinson Gill |
| Counsel for the Independent Children's Lawyer: | Ms Dowler |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
That the Contravention Applications of the mother filed 27 March 2015 and 26 October 2015 be dismissed.
That all prior parenting orders be discharged.
That the father have sole parental responsibility for the child X born (omitted) 2007 (“X”).
X shall live with the father.
That the mother, preferably with the assistance of any treating professional, shall forthwith appoint an independent psychiatrist and undertake such therapy and treatment as may be necessary and advised by that psychiatrist at the mother’s expense.
That a copy of the two reports of Dr T dated 20 July 2008 and 7 April 2016 and a copy of this judgment shall be provided by the father to the expert appointed pursuant to order 5 above to read prior to any treatment undertaken by the mother.
The independent psychiatrist appointed pursuant to order 5 shall advise the father in writing when, in his or her professional opinion, the time with X and his mother in order 8 herein should commence after the expert has:
(a)Fully complied with order 6 herein;
(b)Had a meeting the father and the father has discussed his concerns about X and time with the mother;
(c)The mother has undertaken all necessary therapy and treatment; and
(d)After complying with (a) to (c) above, the expert is satisfied that the treatment has been effective enough to ensure the mother is not a real or potential risk to the emotional and psychological well-being of X.
That subject to orders 5, 6 and 7 herein, X shall spend supervised time with and communicate with the mother:
(a)At the Berry Street Family Services Centre, (omitted) or under such other supervisor or location as agreed to by the father and mother in writing, first obtained;
(b)For two hours four times a calendar year, approximately every three months (save for January in each year) as proposed by the officer in charge of the supervision centre or other jointly appointed supervisor in consultation with the parents; and
(c)Communication shall be undertaken by the mother sending cards and gifts each Christmas and on his birthday to X, with the father to encourage X to send a reply to the mother.
That a copy of this judgment shall be provided by the father to the relevant supervisor in order 8 above and shall be read by them before any supervision is undertaken.
That the consent order 2 made 21 April 2016 shall remain in full force and effect which order states:
Pursuant to sections 102QB and 118 of the Family Law Act 1975 (Cth) (“the Act”) and rule 13.11 of the Federal Circuit Court Rules 2001 (Cth), the Applicant mother MS HARDING born (omitted) 1971 may not, without leave of a Court having jurisdiction under this Act, institute any proceeding under the Act against the Respondent father MR WATSON born (omitted) 1966.
The order appointing the Independent Children’s Lawyer be discharged.
That all extant applications be dismissed.
Certify for Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Harding & Watson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12820 of 2007
| MS HARDING |
Applicant
And
| MR WATSON |
Respondent
REASONS FOR JUDGMENT
“Experience is a hard teacher because she gives the test first, the lesson afterwards.” (Vernon Sanders Law)
Introduction
X was born 3 months prematurely on (omitted) 2007 and came into a world of distress, confrontation and instability when he was in the presence of both of his parents.
The parents, Ms Harding and Mr Watson, met in (omitted) 2006, commenced cohabitation just prior to Christmas 2006 and separated on 15 July 2007 when X was just over 3 months of age. This little boy has lived with his father since October 2012 and it is common ground between the father and the Independent Children’s Lawyer that the father is doing a very good job in promoting his child’s welfare.
The applicant mother filed her amended application on 15 April 2016 seeking, amongst other things, the following orders:
(a)The mother have sole parental responsibility for the child;
(b)The child live with the mother; and
(c)The child spend time with the father for 2 hours per month with the father to pay for supervision.
The father’s Amended Response filed 10 February 2016 seeks the dismissal of the mother’s application and for him to have sole parental responsibility and time with the mother supervised. He also seeks an order pursuant to s102QB of the Family Law Act 1975 (Cth). He alleges that historically she has brought far too many applications that lack merit and her future proposed litigation should be monitored by this court, given the unnecessary stress and expense the unfounded applications create.
Interestingly, and somewhat unexpectedly, on the fourth and last day of trial Ms Harding consented to such an order. It would appear that the trial process particularly hearing from the expert Dr T, has opened her eyes to her emotional and psychological weaknesses and she in turn acknowledges that something needs to be done about these flaws.
Background
The applicant mother, Ms Harding, was born on (omitted) 1971 and is therefore aged 45 years. Ms Harding says she is a student and resides at (omitted). She filed an Affidavit and annexures the size of a small phonebook and represented herself in these proceedings. Being mindful of the authority Re: F Litigants in Person Guidelines (2001) FLC 93-072 I assisted the applicant where I could and as best I could. She was aware I could not give her legal advice and which was a matter for her.
The respondent father was born on (omitted) 1966 and is therefore aged 50 years. He lives in a stable and close relationship with his partner, Ms D in (omitted). They jointly care for X. Mr Watson does not undertake paid employment, suffering from epilepsy and therefore is available to his son full time.
The parties have litigated in the State Magistrates’ Court and this court and the history of ligation in our court is very sad and sobering.
Proceedings were commenced by the father on 26 November 2007 when he filed an application seeking final parenting orders for equal shared parental responsibility and “equal time with both parents.” I note X was then aged 20 months.
Subsequently there were interim hearings on 29 January 2008, 21 February 2008, 27 March 2008, 17 April 2008, 14 May 2008, 19 August 2008, 14 November 2008, 24 November 2008. On 13 July 2009 the following orders were made:
1 Pursuant to section 39 of the Federal Magistrates Act 1999, these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER THAT:
2 There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties personally and dated 13 July 2009 (“the Minute”) and further:
(a) The Minute be placed upon the court file.
(b) The solicitors for the Independent Children’s Lawyer do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
(c) Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
3 Both the mother and father, their servants and agents are restrained from taking or sending or attempting to take or send the child X, male, born (omitted) 2007 (“the child”) from the Commonwealth of Australia.
4 The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
5 The Registry Manager must immediately notify the Marshal and the Australian Federal Police Family Law Team of these orders by telephone and must as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the State Police.
6 The Court requests that until further order the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
7 Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
ANNEXURE “A”
1 That all previous Orders be and are hereby discharged.
2 That the parents have equal shared parental responsibility for the child of the relationship X born (omitted) 2007 (“X”).
3 That X live with the father from 10:00am on Monday to 6:00pm on Thursday each week, and with the mother at all other times and that each parent be responsible for X’s day to day care, welfare and development while he is in their respective care.
4 That X spend time with the mother:
(a) From 3:00pm on Christmas Eve to 3:00pm on Christmas Day 2009 and in each alternate year thereafter; and from 3:00pm on Christmas Day until 3:00pm on Boxing Day in 2010 and in each alternate year thereafter;
(b) For four hours on his birthday each year by agreement between the parties and failing agreement, from 8:00am to 12 noon in 2010 in each alternate year thereafter and from 12 noon to 4:00pm in 2011 and in each alternate year thereafter.
(c) At other times by agreement between the parties.
5 That X spend time with the father:
(a) From 3:00pm on Christmas Day to 3:00pm on Boxing Day 2009 and in each alternate year thereafter; and from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2010 and in each alternate year thereafter;
(b) For four hours on his birthday each year by agreement between the parties and failing agreement, from 12 noon to 4:00pm in 2010 in each alternate year thereafter and from 8:00 a.m. until 12 noon in 2011 and in each alternate year thereafter.
(c) At other times by agreement between the parties.
6 That changeover take place in the car park of the (omitted) Church (omitted), on Thursday, and that each party be at liberty to have a third party collect or deliver X on their behalf, and on Monday the mother shall deliver X to the children’s play centre at the (omitted).
7 That should a third party be arranged to collect X from or deliver him to the other parent at changeover, the party who has made that arrangement must notify the other party as soon as practicable.
8 That upon receipt of the notification set out in paragraph 7 hereof, neither party shall ask any questions of the third party in relation to the other parent, nor in relation to that third party’s role in the changeover process.
9 That each of the parties be and is hereby restrained by injunction from speaking in a derogatory manner about the other in X’s presence or hearing, and from allowing him to remain in the presence or hearing of third parties engaging in such conduct.
10 That all communications between the parties, apart from civil greetings and farewells at changeover, be by text message or email, or, should the parties agree, via a communication book, and all communications between the parties shall be civil, child focussed and strictly in relation to X’s needs.
11 That each party inform the other as soon as practicable should X suffer any injury or illness that requires medical treatment.
12 That until further order the father and mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child X born (omitted) 2007 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the same of the said child on the Airport Watch list in force at all points of arrival and the departure in the Commonwealth of Australia maintain the child’s name on the Watch list until further order of the Court.
13 That each party continue to attend upon their medical and associated practitioners and continue to abide by all instructions and requests made by those practitioners.
14 That should X attend child care or pre-school, then both parties shall authorise the other to receive, at the receiving party’s expense, any reports or photographs of X from the child care centre or pre-school.
15 That in addition to the time spent defined in paragraphs 3, 4 and 5 herein X shall spend time with the father:
(a) For one week from 10:00am Monday to 10:00am Monday during all gazetted Victorian school term holidays commencing on the second Monday falling during such holidays, to commence during the first term 2010 holiday.
(b) For one week commencing 10:00am on 18 January 2010 to 10:00am on 25 January 2010.
16 During the operation of order 15 herein, all other orders providing for live with and time spent shall be suspended.
17 Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
18 That the parties have liberty to apply at short notice.
19 Pursuant to Rule 21.12 of the Federal Magistrates’ Court Rules 2001, the Court certifies that it was reasonable for the parties to engage counsel for these proceedings.
AND THE COURT NOTES:
That the father and the mother shall sign all documents and do all things necessary to enter the Berry Street Children’s Contact Changeover Program waiting list at (omitted).
The mother filed a contravention application on 14 October 2009 and that was withdrawn by consent on 14 November 2009. On 25 October 2010 the parties entered into interim consent orders which provided as follows:
1 That orders 3, 4, 5 and 6 of the orders made 13 July 2009 be suspended between 13 December 2010 to 24 January 2011.
2 That X born (omitted) 2007 ("X") live with the father from 10am 13 December 2010 until 10am 20 December 2010 and each alternate week thereafter and with the mother at all other times.
3 That X be returned to live with the father at 3pm Christmas Day and shall remain with the father until 10am 3 January 2011 notwithstanding order 2 herein.
4 That the provision of the order 3 made 13 July 2009 resume at 10am on 24 January 2011 and continue until further order.
5 That in the event changeover for X cannot occur at Crèche or kindergarten then it shall take place inside the police station (omitted).
6 That X shall commence kindergarten at (omitted) Community Child Care Centre on 25/1/11 each Monday, Wednesday and Friday.
7 That the parents shall engage at equal cost Family Transitions and participate in a program recommended by them and it is noted X shall not attend and it is also noted such participation shall be confidential.
8 That the mother attend upon Dr L, psychiatrist, for the purposes of the preparation of a report and it is requested that VLA meet the costs of same.
9 That the Independent Children’s Lawyer be at liberty to issue subpoenas returnable in the subpoena list at 9.30am on 18/11/10.
10 That the matter be adjourned for final hearing before Justice Dessau at 10am on 7/2/11 with an estimated hearing time of 4 days.
11 That the parties file and serve all affidavits on which they seek to rely by 4pm on 10/12/10.
12 That there be a telephone mention with the registrar on a date to be notified after 10/12/10 and prior to 24/12/10.
13 That each party file and serve by 2/2/11:
(i) a list of witnesses
(ii) a precise minute of orders sought
(iii) a case outline
On 9 February 2011 Her Honour Justice Dessau made the following final orders:
Not By Consent
1 All prior orders relating to the parenting of the child X born (omitted) 2007 (“X”) including any airport watch list order, be and are hereby discharged and that the Father’s solicitors shall as soon as practicable serve a sealed copy of these Orders on the Marshalls of the Family Court of Australia and the Australian Federal Police.
By Consent
2 The Father have sole parental responsibility for the child X.
3 The child X live with the Father.
4 The child X spend time with the Mother as follows:
(a) For 2 hours each alternate Thursday to be supervised by a professional supervisor arranged and paid for by the Father, to take place from 10.30am to 12.30pm commencing 17 February 2011 ;
(b) For 2 hours each other Thursday to take place at children’s contact centre to be nominated by the Mother being a centre within a 10 kilometre radius from the home of the Father and being a centre which will provide staff to supervise the time between the Mother and X (“the Contact Centre”), at a time nominated by the Co-ordinator of the Contact Centre commencing 10 March 2011;
(c) In the event that the Contact Centre provided for herein is not immediately available the Mother may spend time with X provided that the Mother nominates a supervisor who is approved by the ICL to supervise her time with X and in that case the time with X shall take place on the other Thursday from 10.30am to 12.30pm with the mother to arrange collection and return from the Father’s residence and the Father shall be informed of the supervisor’s mobile telephone numbers.
5 For the purpose of implementing 4b herein:
(a) Within 7 days of making these orders the Mother shall nominate a Contact Centre and advise the Father in writing of the details of the centre;
(b) Within 3 days of the Mother advising the Father of the details of the nominated Contact Centre each of the Mother and the Father shall make telephone contact with the staff at the contact centre;
(c) Each of the Mother and Father shall attend the intake interview and complete any documents as required by the Contact Centre and thereafter follow all reasonable directions of the Contact Centre necessary to use the service; and
(d) The father shall deliver the child X to the Contact Centre at the commencement of each period of time with the Mother as directed by the centre and the Mother shall attend the Contact Centre to exercise her time with the child at times as directed by the Contact Centre staff.
6 For the purposes of implementing 4a herein:
(a) The Father shall make contact with the supervisor or supervision service within 48 hours of the making of these orders and thereafter complete any documentation required by the service necessary to engage the service;
(b) The Father shall provide to the supervisor the contact details for the Mother to enable the service to communicate with the Mother;
(c) The Mother shall negotiate with the supervisor a meeting place and time for her contact with X to take place;
(d) The Father shall do all things necessary to ensure that X attends at the place nominated for time with the Mother to take place at the nominated time
(e) The father shall be responsible for the payment of all fees associated with the use of the paid supervisor.
7 The mother’s time with X shall be suspended as follows:
(a) For periods of time per year being not more than 3 consecutive contact sessions (6 weeks) to allow the Father and X to travel on holidays (“holiday time”) provided that the Father advises the Mother in writing of his intention to holiday with the child not less than one month prior to the anticipated date of departure and provides to the Mother in writing an itinerary setting out the particulars of the travel plans, including flight and accommodation details and a phone number at which the child can be contacted during the holiday period; and
(b) The first period of holiday time shall take place from 2pm 17 February 2011 to 3 March 2011 and the second period of up to 6 weeks holiday time shall not take place until at least 9 months of the making of these orders
8 In the event that the Father and the child exercise holiday time as provided for in paragraph 8 herein then the mother shall be entitled to make up time with X such time to be taken by extending the period of time with the child as provided for in 4a and 4b herein or arranging time on days agreed between the parents.
9 The Mother shall forthwith provide to the ICL and the Father an irrevocable authority, permitting the ICL to discuss with the Mother’s psychiatrist, psychologist and mental health nurse or case manager (“the Mother’s treating professionals”) the Mother’s state of mental health and compliance with her medication including any hospital attendances by the Mother.
10 The ICL shall for a period of 12 months be at liberty to discuss with the Mother’s treating professionals the Mother’s state of mental health and compliance with her treatment regime.
11 The Mother shall arrange for her treating professionals to prepare a report addressing the matters set out herein such report to be sent to the ICL and to the Father’s solicitors each 4 months for the next 12 months the first report to address the following:
(a) The Mother’s compliance with treatment program including attendance with her treating professionals;
(b) Any hospital admissions by the mother including any attendance at the emergency department; and
(c) The Mother’s level of insight into her illness.
12 The parents shall instruct Mr P to prepare an updated Family Report not less than five months from the date of the making of these orders such report to address the relationship between the Mother and X and whether from the report writer’s view the child X is ready to increase the time with his mother including addressing the Mother’s capacity to care for the child in an unsupervised setting taking into account the Mother’s state of mental health as reported by her treating professionals, copies of the report to be given to the solicitors for the Mother, Father and to the ICL.
13 The cost of the report by Mr P be borne equally by the parties and in this regard Legal Aid Victoria is requested to fund the Mother’s half share of the report.
14 The Father shall obtain a report from the paid supervisor regarding the interaction between the Mother and X during their time together, such report to be prepared not earlier than five months from the date of the making of these orders and to be paid for by the Father and copies to be provided to the solicitors for the Mother, the Father and the ICL.
15 The ICL shall obtain a report from the Contact Centre regarding the interaction between the Mother and X during their time together, such report to be prepared not earlier than five months from the date of these orders and copies to be provided to the solicitors for the Mother and the Father.
16 Upon the release of the updated Family Report the ICL shall arrange a Roundtable Dispute Management (“RDM”) conference for the parties and the parties shall attend such RDM to discuss the future time that X will spend with his Mother and under what circumstances and if agreement is reached to enter into Consent Orders in relation to the Mother’s time with X, and any costs for such RDM to be borne by the parties equally.
17 The father shall facilitate X communicating with his Mother by telephone each Tuesday and Sunday evenings between 6 – 7.30pm with the Father to telephone the Mother.
Not By Consent
18 The Father is hereby authorised to obtain an Australian Passport for the child X independently of the consent of the Mother.
By Consent
19 The ICL be discharged 12 months from the making of these orders.
20 Pursuant to ss65DA(2) and 62B of the Family Law Act 1975 the particulars of which obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
21 Each parent shall notify the other in the event of any change to their telephone number and or residential address, such notice to be given not less than 24 hours after any such change.
22 The Father shall notify the Mother as soon as practicable in the event of any accident or injury to X requiring X to be hospitalised.
23 The Mother shall advise immediately or cause some person on her behalf to advise the ICL of any hospital admission by her, and following the discharge of the ICL the Mother shall notify the Father or cause the Father to be notified by SMS text message of the Mother’s hospitalisation.
24 Otherwise all existing application shall be dismissed and the case removed from the list of cases awaiting determination.
NOTATIONS
A The Father nominates Ms M as the paid supervisor and in this regard, Ms M is available for supervision to commence on 17 February 2011 at 10:30 meeting the Mother at the Mother’s place of residence or as the Mother otherwise directs.
B The Mother nominates the Berry Street, (omitted) Contact Centre as the child contact centre and in this regard the Contact Centre is not able to immediately accommodate the parties.
C The Mother nominates Ms H as one of her supervisors who is yet to be approved by the ICL.
D The Father intends to take the child X to (country omitted) for a holiday leaving after the conclusion of time with the Mother on 17 February 2011 and returning so that the child X can spend time with the Mother on 3rd March 2011 supervised by the Father’s paid supervisor.
E The questions of whether these Orders were interim or final, and whether or not there should be a Watch List order and passport obtained by X, were not by consent.
On 30 August 2012 the mother filed an initiating application in the then Federal Magistrates’ Court mainly seeking equal shared parental responsibility, X to live with the father and to have detailed time with the mother. X was then aged 5 years and still caught in the cross-fire of the parents’ litigation.
On 8 October 2012 further final orders were made by consent which provided:
1 All previous Orders be and are hereby discharged.
2 The Father have sole parental responsibility for the child X born (omitted) 2007 (“the child”).
3 The child live with the Father.
4 The child spend time with the Mother as follows:
(a) Each alternate Saturday from 10 am to 5 pm commencing 20th October 2012;
(b) Each Thursday from 4.30pm to 7.30pm;
(c) Each Mother’s Day from 10 am to 5 pm;
(d) Each Christmas Day from 4.30 pm to 7.30 pm;
(e) As otherwise agreed;
(f) Each Thursday from the commencement of the long summer school holiday from 10 am to 5 pm prior to 25th December, in lieu of 4 (b).
5 All changeovers in order for the Mother to spend time with the child shall take place in (omitted), opposite the (omitted) Railway Station.
6 The Mother’s time with the child shall be suspended:
(a) During the June/July holiday or in the event there is a 3 week school term holiday, for that holiday, if not the June/July one.
(b) From 26th December each year to the resumption of school term commencing 2012.
7 The time on Thursday as defined in Order 4 (b) herein shall be suspended during the remaining 2 school term holidays and in lieu thereof the Mother shall have time with the child from 10 am to 5 pm on the Sunday immediately following her Saturday time following in those holidays.
8 Each parent shall notify the other in the event of any change to their telephone number or residential address, such notice to be given within 24 hours of any such change.
9 The Father shall notify the Mother of any accident or injury to the child requiring him to be hospitalised as soon as practicable.
10 The Mother shall notify or cause to be notified the Father by SMS text message of any inpatient hospital admission by her.
11 The Father shall authorise any school the child attends from time to time to provide to the Mother copies of all reports, newsletters, and documents relating to the child which would ordinarily be made available to parents.
12 The Parenting Plan dated 13th March 2012 be and is hereby set aside pursuant to s 63H (1)(b) and (c).
13 The Mother shall authorise and direct her mental health care providers to send a report to the Father of her health and compliance with treatment (if any) each 6 months from this date.
AND THE COURT NOTES
the parties shall attend mediation no sooner than July 2013 should variations to time spent be sought by either of them and prior to that mediation the Mother shall provide an updated medical report informing as to her state of health and her compliance with medical direction.
And it is further noted the Father shall deliver the child on 18th November 2012 to the (omitted) at 2pm and collect him at 5.00pm.
On 2 August 2013 the mother filed an Initiating Application seeking, amongst other things, final orders to…“be excused from particularising the Orders sought pending the outcome of a Family Report and further assessment of the mother” (sic) and relevant interim orders as follows:
3 That the Mother and Father have equal shared parental responsibility for the long term care, welfare, schooling and development of the Child of the Relationship, namely X born (omitted) 2007 (“the Child”). (sic)
4 That the Child live with the Father.
5 That the Child spend time with the Mother as follows:
(a) Each alternate Friday from the conclusion of school (or 3:30pm) until the following Monday until the commencement of school (or 9:00am);
(b) Each Wednesday from 4:30pm until Thursday at 7:30pm.
6 That both parties be and are hereby restrained from denigrating each other to or in the presence of the Child.
7 That the Father be and is hereby restrained from referring to any person other than the Applicant Mother as the mother of the Child.
8 That the parties be and are hereby restrained from removing the Child from the State of Victoria or the Commonwealth of Australia without an Order of the Court or written consent of the other party and IT IS REQUESTED that the Marshall of the Family Court of Australia at Melbourne and all officers of the Australian Federal Police give effect to this Order and the solicitors for the Mother serve a sealed copy of these Orders on the Australian Federal Police.
9 That pursuant to Section 62G(2) of the Family Law Act 1975 a Family Report be prepared by a Counsellor nominated by the Director of Court Counselling of this Court to be released.
10 Such further and other Orders as this honourable Court deems appropriate.
It came before Judge Hartnett on 14 August 2013 when she heard the matter summarily and dismissed the mother’s application pursuant to the approach of Rice v Asplund (1978) FLR 570 and ordered the mother to pay $3,150 costs to the father.
The mother appealed this decision by a Notice filed 11 September 2013 which was heard on 2 October 2014 and the appeal was dismissed. Again the mother was ordered to pay the father’s costs… “to be assessed on a party-party basis in default of agreement.”
On 25 November 2013 the mother filed a contravention application and on 10 February 2014 Judge Hartnett made the following orders:
1 Count 2 of the Contravention Application filed 25 November 2013 is dismissed.
2 Order 4(b) of the Orders made 8 October 2012 be varied to read from 5:00pm to 7:00pm
3 Count 1 of the Contravention Application filed 25 November 2014 is withdrawn.
4 The costs of the father are fixed in the sum of $2,000 and reserved.
Since March 2015, the mother has filed the following material with the court:
(a)On 27 March 2015 a Contravention Application with an affidavit in support sworn by the mother on 27 March 2015;
(b)An Initiating Application on 4 June 2015 with an affidavit in support sworn by the mother on 4 June 2015;
(c)An Application in a Case on 31 August 2015 with an affidavit in support affirmed by the mother on 31 August 2015
(d)Application for Review on 2 September 2015 along with an affidavit affirmed on 31 August 2015 and an affidavit sworn or affirmed on 2 September 2015. She also filed two affidavits sworn on 28 August and 31 August 2015;
(e)An Application in a Case on 7 September 2015 along with an affidavit in support affirmed on 7 September 2015;
(f)A Contravention Application on 26 October 2015 with an affidavit in support affirmed 26 October 2015;
(g)An Application in a Case on 26 October 2015 with an affidavit in support affirmed on the same date;
(h)A further Application in a Case was filed on 2 December 2015 along with an affidavit in support affirmed on 2 December 2015
(i)
An Application for Review filed 18 January 2016 along with an Application in a Case and an affidavit in support sworn
18 January 2016;
(j)On 4 February 2016 the mother filed a further Application with an affidavit in support affirmed on 4 February 2016. She filed further affidavits on 11 and 19 February 2016;
(k)She filed an Application in a Case on 29 February 2016 along with an affidavit in support sworn 22 February 2016;
(l)She caused an Application for Review to be filed on 29 February 2016 along with an affidavit in support sworn the same date;
(m)
Finally, she filed an Amended Initiating Application on
15 April 2016, just before trial.
On 1 July 2015, the applicant mother’s Contravention and Initiating Applications came before me in the Duty List and I adjourned the matter to 11 August 2015. The father subsequently filed his material, and on 11 August 2015 I made the following orders:
THE COURT ORDERS THAT:
1 The current spend time orders between the child X born (omitted) 2007 (“the child”) and the Mother be suspended.
2 The child spend supervised time with the Mother for no less than two hours per fortnight at a contact centre as agreed between the parties however, in the event that there is a waiting period beyond four weeks, such time is to be supervised by an adult nominated by the Mother and approved by the Father to act as supervisor.
3 All extant applications be adjourned to this Court on 4 December 2014 at 10.00 a.m. for defended hearing with an estimated hearing time of one (1) day.
4 By no later than 5.00 p.m. on 4 November 2015, the parties make file and serve any amended applications and affidavits upon which they seek to rely at the defended hearing.
5 The parties’ costs of today be reserved.
On 4 December 2015 this matter was listed for one day trial but it could not proceed as it would exceed one day given the mother had filed further applications and supporting material and she appeared in person.[1] I dealt with a further dispute about time with X and adjourned it, with priority, to trial commencing 18 April 2016.
[1] . Because of the current paucity of Legal Aid, more people are acting for themselves at trial and in these circumstances I am generally finding that one day cases turn into two days, two days become three days and so on; quite a burden for the court.
The case ran for four days and the mother wisely, on day four, consented to an order that she shall not issue future proceedings without leave of the Court. Notwithstanding her consent, I shall provide some commentary on this topic after dealing with her Contraventions and then finally I shall deal the parenting orders sought by the parties.
The evidence
The parties relied on the following documents:
A. Applicant mother’s material:
The applicant mother generally relied on the relevant material outlined in paragraph 19 herein and in particular her affidavit filed 29 March 2016 and her Outline of Case filed 15 April 2016.
B. Respondent father’s material:
(a)Case Outline filed 15 April 2016;
(b)Amended Response to Initiating Application filed 10 February 2016;
(c)Response to an Application in a Case filed 8 April 2016;
(d)Affidavit of Mr Watson sworn 7 August 2015 together with exhibits W-001 to W-014 inclusive;
(e)Affidavit of Mr Watson sworn 26 November 2015 together with exhibit W-001;
(f)Affidavit of Mr Watson sworn 10 February 2016 together with exhibits W-001 to W-005 inclusive;
(g)Affidavit of Mr Watson sworn 8 April 2016 together with exhibits W-001 to W-003 inclusive; and
(h)Report of Dr T dated 7 April 2016.
C. The Independent Children’s Lawyer’s material:
(a)Case Outline filed 15 April 2016; and
(b)Report of Dr T dated 7 April 2016 annexed to Affidavit affirmed and filed on 15 April 2016.
Contraventions
The mother’s two Contravention Applications filed 27 March 2015 and 26 October 2015 disclosed allegations that were enmeshed factually in the proceedings for X to live with and spend time with his parents.
The mother alleges that the father breached orders 4(a) and 4(b) of the Consent Orders made 8 October 2012 which provided as follows:
4 The child spend time with the Mother as follows:
(a) Each alternate Saturday from 10 am to 5 pm commencing 20th October 2012;
(b) Each Thursday from 4.30pm to 7.30pm.
I note that order 4(b) above was varied to 5pm to 7pm by the order of 10 February 2014.
She also further alleged the father breached order 11 made 8 October 2012 but when this matter was first raised before me at trial I indicated to her there was no evidence of this alleged breach and therefore she could not prosecute that count. Moreover, the father in cross-examination gave clear evidence that he complied with this order.
Her Applications allege there were ten counts of breaches of these orders. When called on to plead, the father claimed he had a reasonable excuse and therefore effectively pleaded not guilty to these allegations.
The mother was called to give evidence to prosecute her claim and face cross-examination. It appears that the events of 12 February 2015 play a pivotal role in both the question of the contraventions and the parenting dispute.
The mother was closely cross-examined about the contents of a statement that the respondent father provided to the police on
20 February 2015, which was Annexure W-006 to his affidavit sworn 7 August 2015, which in summary contained the following allegations:
“…On Thursday the 12th of February, 2015, at approximately 4.30pm X, my son, and I were walking up (omitted) to meet Ms D, my partner, at (omitted) train station…As we were approaching the station we saw Miss Harding standing at the entrance to (omitted) station…” (sic).
“…I looked over to (omitted) as I was walking down (omitted) street and I saw Miss Harding holding up her phone up and was taking photos or filming us. Miss Harding turned and followed us to (omitted)…Ms D came up to join X and I on the footbridge and Miss Harding appeared and again was taking photographs of us. She had followed us on to the foot bridge.”
“…Ms D, X and I tried to avoid the area knowing that she was around and went and sat in a coffee shop until 5 o’clock when change over was due.
At 5 o’clock I went to change over with X and our dog, (omitted)…Ms D was on the footbridge and change over is on (omitted) at the entrance to (omitted) train station at the pedestrian crossing. I went to the pedestrian crossing and Miss Harding made a comment to X “Do you know how to spell (omitted)?” which I instantly took as a threat to me. She appears to know my Income protection insurance company name which is (omitted) and that is my source of income.”
“…During the change over she was coming towards me, while X was hiding behind me. I have to encourage X to go with her… Miss Harding was coming at me and trying to grab him from behind me. X was hiding behind me and I believe he was more scared of Miss Harding today due to the earlier incident. A female, named Ms A, saw Miss Harding was coming at me trying to get X and I was saying “No stay away” to Miss Harding. Ms A stood there and Miss Harding told Ms A that I was mad and that I was a psycho. I asked Ms A if I could take her details for a witness to this behaviour which she agreed to.”
“…At 7 o’clock I was waiting at the entrance to (omitted) station at the pedestrian crossing for X. At ten past 7 all I saw was Ms K coming around the corner…and X ran towards me in front of her…I know Ms K because she has been at changeovers before and been threatening and aggressive. I was immediately concerned for my safety when I saw her. The Family Court Order clearly states that Miss Harding must do the change over but she wasn’t with Ms K at this stage…We walked over the foot bridge to meet Ms D on (omitted) where we had earlier parked the car. When we got to the steps at the other side to go down the foot bridge Ms K came up the steps very aggressively at us saying “I’m going to get you!”. I bent down to protect X and picked him up and get past her (sic). Something hit me on the back as we went down the stairs. I believe that she hit me with something. No one else was there at the time. She was following us, waving her arms and yelling at me and X…I turned around and told her “Don’t come near X!” we were both pretty scared because she is big and aggressive…I called out to two people that were near and had seen what was happening…they came and stood in between Ms K and me and X. Ms K stopped and smiled at me in a threatening way. I saw them get on their phones to call police and I asked another person to go and look after Ms D while I got X away. I then realised that Miss Harding had been there the whole time and was taking photos or filming on her phone. Miss Harding was about 10 metres away from me holding up her phone. They were both standing there beaming…They appeared to be enjoying it all. I took X over to the pub on the other side of the road and sat on the seats outside near (omitted) with a male and female trying to comfort X who was visibility distressed by all that.”
“I…noticed Miss Harding and Ms K get into Miss Harding’s car…stopped in front of X and I. Miss Harding stopped beside us, wound down her window and started shouted (sic) something at me while I was sitting with X and this other couple. I got up to move away and a man that was sitting at another table got up and yelled at her to go away. Miss Harding then drove towards (omitted) along (omitted). I didn’t see or hear from Miss Harding again that day.”
The mother in cross-examination denied many of the allegations and claimed no knowledge of some of the events of that day. During cross-examination, the father through his counsel conceded… “he did not take X to any of the occasions you’ve listed” (in the Contravention Applications). It was also put to the mother that it was the father’s case that the incident on 12 February 2015 led him to refuse to bring X any longer to spend time with her because he took the view it was not safe or healthy for X. It was also put in cross-examination of the mother that once an order had been made by this court providing for supervision of that time with X, the father complied with that order. The mother agreed that that was the case.
I note in the father’s Affidavit sworn 7 August 2015 and filed 10 August 2015, at paragraphs 11, 15 and 16, he makes the following comments:
“11 Prior to this time X had experienced significant reactions to time spend with his mother. This encompassed him being sick, defecating himself and becoming teary and emotional. I have observed increasing stress levels immediately leading up to time spent arrangements and his withdrawal into himself following time spent. I have attempted to assist X with the difficulty he faces in spending time with the applicant mother and have sought the assistance initially of family therapist Ms B at (omitted) and ultimately upon the recommendation of the police consulted Ms I of (omitted) (sic). Now shown to me and marked with the letters “W-007” is a copy of the counselling report dated 14 May 2015.”
“15 As a consequence of this escalating conduct I decided that I could not responsibly continue to expose X to what I perceive to be his mother’s irrational and violent conduct. On 19 February I sent a text message to the applicant mother advising her that I could no longer tolerate her behaviour and that it was damaging X and accordingly time would cease.
16 On 25 May 2015 I instructed my solicitors to send a letter to the applicant mother’s newly appointed solicitors indicating that I could not make X available for time spent arrangements until safeguards were in place. Now shown to me and marked with the letters “W-014”.
I note further that the annexure is a copy letter dated 25 May 2015 from the father’s solicitors to the then mother’s solicitors confirming that the father stopped time with the child due to X being exposed to violence and traumatised by the behaviour of the mother. It went on to suggest time with arrangements could occur at a contact centre “…and resume a level of time subject to the centre’s requirements…” (sic)
The father then was cross-examined by the mother about the contraventions and I note that during the course of that evidence the father said X was distressed and upset by the events of that day at the initial changeover and then subsequently on return, his distress was greater. He said X was very aware of the confrontation that took place and that more particularly, X… “was absolutely petrified and was very scared and he was worried about me.”
During the cross-examination the mother confirmed with me that on
12 February 2015 there was a confrontation and X was upset. She said that changeover was a longstanding problem. I note also that the mother made a statement to the police wherein she described the events as an altercation and that she…”was worried for my son”.
Section 70NAE of the Family Law Act 1975 (Cth) details the meaning of “reasonable excuse for contravening an order” in these circumstances, which says as follows:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7)...
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Having read all the material and heard from the parties in relation to these alleged contraventions, I find on balance that the father does have a reasonable excuse for breaching the time with orders and in the circumstances, the Applications alleging contravention of these orders will be dismissed. It would have been preferable for the father to have brought proceedings seeking the earlier orders be suspended and providing for supervised time with pending trial, however, this does not erode the fact that sub-section 70NAE(5) provides a defence for his behaviour in the circumstances of this most unusual case.
Section 102QB – Consent Order
The major reason this order was made (by consent) was the evidence of Dr T. He first assessed the mother in 2008 in proceedings before this court and provided a written report dated 20 July 2008, the most relevant parts of which are:
“From the outset, Ms Harding spoke intensely of her various fears and loathing of Mr Watson. She would not be swayed from any of this, and her conviction remained unassailed. She is convinced that he is a threat. While she says he will kill her, the main threat is to the relationship which exists between Ms Harding and X. She remains preoccupied by these issues and has been significantly troubled by them.”
“Ms Harding was once again devastated when she discovered that in fact there was nothing between them. Her devastation was deep and extremely hurtful, and strained her psychological defences to the point where she has now developed a delusional belief about Mr Watson in the context of his failure to meet her emotional needs following all the disappointments that had occurred over the last ten years. In that period she lost her mother, her first husband, Mr G and had fallen out with his family and her own. She was very much on her own and believes that she was vulnerable and should not have gone to work. She was masking her grief. The disappointment therefore that she experiences with Mr Watson was just too much bear. Her devastation was great. In her mind, he changed from her saviour to her tormenter.
She harbours various beliefs largely built on hearsay or misconstrued as to his evil and malicious intent towards her. Her views in this respect are unchangeable and fixed. They occur at a delusional level and have a strong psychological basis to them in the context of her various losses and emotional vulnerabilities.”
…
“Ms Harding continued to see herself as the one and only protector of X and her views in that respect are grandiose, and in respect to her view of Mr Watson, her view remains utterly unchanged. More recently in the context of what she perceives as a now very serious threat to the relationship existing between X and herself in respect to Mr Watson’s application for primary care, she has developed panic attacks.”
…
“Ms Harding has developed a delusional disorder in my opinion. This has certain psycho-dynamic elections to it which I have described. The relationship which broke down between herself and Mr Watson appears to have triggered this state of mind. It is regrettable that Ms Harding is not having psychiatric treatment at the present time. She continues to take a rather grandiose and paranoid position in regard to both Mr Watson and to the Court. She continues to remain adamant that she is the protector of X. I did note a slight shifting of her views in this respect, based more than likely on advice from her Solicitor (sic) indicating that her behaviour is causing concern at the Court. Nonetheless, she impresses as having little insight into her own difficulties in respect to these matters. She is certainly adamant that Mr Watson is not someone who she deems fit to have any contact with X. She appears to have little ability or willingness or insight into the need for X to see his father, who struck me as a person who had coped well with his various health issues and impressed as taking a careful and considered line with Ms Harding. He impressed as wishing to maintain contact with X. Ms Harding’s various obfuscations and erratic behaviour have forced him into a position where he has now made a Residence Application. This in turn has put Ms Harding in a spin and she has developed panic attacks.”
…
“Mr Harding is insightless, more than likely delusional, grandiose, and more recently has succumbed to anxiety and panic attacks in the context of what she perceives as a major threat by Mr Watson to take her child from her. Unfortunately she is not receiving psychiatric treatment. I have concerns about the type of treatment she was having, given that her condition more than likely occurs at a psychotic level. Her view of Mr Watson is fixed. He did not impress me as the man who fits with her description or perceptions of him. To the contrary, I found him a considered and careful man who appears to have put up with a lot from Ms Harding.”
His second report dated 7 April 2016 says that her position in relation to the father essentially remains the same, and the most relevant parts of the report are: (initially when talking of the first report):
“I considered that Ms Harding was insightless, grandiose and had succumbed to anxiety and panic attacks in the context of what she perceived as a major threat by Mr Watson to take the child, X from her. I further considered that it was imperative that Ms Harding undertake psychiatric treatment and that the treating Psychiatrist needed to have the benefit of both reports of Mr P and myself in order to understand the circumstances in which Ms Harding finds herself to assist in the assessment and process in that regard. I expressed further concerns in regard to Ms Harding’s statements that she would simply act of her own accord or take things into her own hands.”
…
“Ms Harding attended for her assessment on 5th April 2016 at 3.00pm.”
…
“Throughout this interchange, Ms Harding impressed as someone who has prepared to manipulate and massage the truth, with some flair and absence of discomfort or distress. She remained calm throughout the assessment, and polished her account.
Ms Harding then added that she was the victim of Mr Watson’s attempts to deprive her of contact with X…”
…
“…Essentially, it was her account that she was the victim of Mr Watson’s manipulations and continued attacks upon herself. Given that she accepts she has a psychiatric condition (Bipolar Illness/Schizo-Affective Illness), Ms Harding told me that this had been used against her persistently and consistently over the years and up to the present.”
“SUBSEQUENT DEVELOPMENTS
…She told me she had a breakdown following the Court Hearing after my assessment. She thought this was in July/August 2008.
…
She was managed at a local community health centre either in (omitted) or at (omitted) Community Health between 2009 to 2012.
…
Ms Harding then told me that in December 2010 she had taken an overdose. She said this was because she’d lost her house and that “Mr Watson had sued me” for spousal maintenance. She regards him as acting out of malice and has deliberately pursued her through the Courts (in contrast to Mr Watson’s material which contends that it is Ms Harding who has made numerous applications and has been pursuing him).
…
Following four years of treatment via the (omitted) Hospital ((omitted) Community Health), she said she attended Dr B who had slowly decreased her medication…which precipitated a further episode at (omitted) Primary School…During that episode she confirmed she had reported to The (omitted) Hospital subsequently where she underwent a CT span because she could not speak. She reported seeing her dead mother and dead partner, Mr G and was admitted for two weeks in June 2013 and was then diagnosed with Bipolar Illness.
…
Subsequently Ms Harding returned to the care of (omitted) Community Health via The (omitted) Hospital… She continued under the hospital’s care until she sought private psychiatric treatment with Dr F at (omitted) Psychological Services in (omitted). She continues to attend Dr F.
…
It was not clear on what basis Dr F had formed the opinion that the matters Ms Harding was commenting on were factual rather than delusional. I questioned Ms Harding about this and she said that Dr F had been provided with various documents by the Court, but again it was not clear whether this was exactly so. Throughout her assessment, Ms Harding’s account was provided with aplomb and a smoothness which was convincing, and at all times was not accompanied by anger or irritation. As such her account had a certain persuasive effect and was indeed cogent as well as convincing. At all times she maintained the general narrative that she was the victim of Mr Watson and remained consistent throughout the assessment.
…
In that respect, Ms Harding told me Mr Watson had attempted to alienate and manipulate X’s views of her…
…
In addition, she added that she had further evidence of Mr Watson’s deliberate attempts to threaten her including that his partner got her boyfriend, an ex-Barrister to stalk her online via Linked In…
…
Ms Harding confirmed the presence of mutual Intervention Orders indicating that she had taken out an Intervention Order against Mr Watson in 2012 and he had taken out one on her in February 2015, a situation which she smilingly referred to as ‘still in play’ and was currently proceeding in the Melbourne Magistrates’ Court.”
…
“DAILY ACTIVITIES
Ms Harding described a range of interests, though began by saying that litigation was “a full time gig”.
…
“Ms Harding confirmed that she had made various allegations against “a broader group of persons” including his partner, Ms D, the Police Officer assisting a former partner of Ms D, the School Principal, his Lawyer and an insurance company. She confirmed adamantly that she “absolutely” believed the following allegations about Mr Watson were true:
(a) That he wished to consume X’s placenta at birth;
(b) That he locked her in a bathroom to avoid her gaining weight during pregnancy;
(c) That her Legal Representatives were stalking her;
(d) That his partner, Ms D was delusional, erratic, violent and a drug addict;
(e) That her Lawyer had conflicts of interest and was engaged in a sexual relationship with her Neuropsychologist;
(f) That Mr Watson entertained gay males naked;
(g) That he was under investigation for insurance fraud and possession and circulating child pornography;
(h) That he followed Nazi traditions;
(i) That he hired a Security Guard to protect X.
Whilst Mr Watson's Affidavit refers to none of the allegations being true, Ms Harding adamantly and without qualification indicated that they were. Again she was unfussed when categorically indicating the truth of her allegations and did so in a convincing, unperturbed manner. She further confirmed that Mr Watson was an ice addict, was violent, alcoholic and abusive.”
…
“Ms Harding added that X was living in an environment which was “not appropriate for a little boy”. “I’m concerned that he is living a life of drugs (ice)”. She said that Ms K had identified Ms D (Mr Watson’s partner) as a drug dealer in ice, information which she believes has been reliably provided to her by Ms K (despite previous information in regard to Mr Watson’s hospitalisation at the (omitted) Hospital not being correct). “He’s fixated on me since the child was born. He’s gone after me. He’s got my money. It’s deliberate.””
“MENTAL STATE EXAMINATION
Affect- Her mood was euthymic. Her affect was confident, smiling and convivial. When providing her account, Ms Harding was noted to be slightly disinhibited and was not at any time distressed, nor did she show signs of grief. She was not tearful. Eye contact and rapport were well maintained across the interview.
Talk- Speech as slightly pressured at times but generally normal in rate, rhythm, stream, flow and prosody. Ms Harding related in a persuasive, confident matter. Her account was cogent and detailed. Throughout the assessment she remained adamantly convinced of her rightful position as X’s mother, contending that what difficulties had ensued between herself and X lay fairly at the feet of Mr Watson who she believes is running a smear campaign to deprive her of contact with X, which exactly mirrors his position and allegations in regard to her.
There was a conveyed sense of grandiosity and confidence. There were no unusual ideas or evidence of elevated mood. Ms Harding was unwavering in her account and would not brook any suggestion to the contrary. Her narrative showed little in the way of normal feelings of grief or loss and her various comments in regard to X had a proprietal quality to them.”
…
“SUMMARY
I have now assessed Ms Harding on two occasions. Despite psychiatric treatment, she continues to maintain a campaign against Mr Watson in the circumstances described…
…
Throughout the interview, Ms Harding’s presentation was notable for her lack of reflection on what contributions she may have been making to the situation and her current demise. She was at all times a persuasive presence who provided her account in the absence of distress, doubt, guilt or concern.
Dr F’s bold statement to the effect that she was convinced that the incidents alleged by Ms Harding of Mr Watson persecuting her were based in fact rather than delusional are a testimony to Ms Harding’s ability to convert those around her to her cause.
DIAGNOSIS
- Delusional Disorder – Persecutory Type – Multiple Episodes (DSM-V 297.1)”
“OPINION
1. Ms Harding’s position in regard to Mr Watson is trenchant and essentially remains the same as when I first assessed her in 2008. Whilst she does not describe or present with symptoms of a frank psychotic episode as she has on a number of occasions whereby she has required psychiatric treatment, at one stage on an involuntary basis Ms Harding is nonetheless disturbed and continues to harbour a paranoid view of Mr Watson who she considers and believes is attempting to deprive her of contact with X.
2. Ms Harding’s allegations are as bizarre as they are numerous and essentially contain a series of misrepresentations of comments and/or behaviours which have been taken out of context by her to use against Mr Watson. These allegations and beliefs have spread to various parts of his life and continue to be raised in the Courts via a series of applications. Ms Harding demonstrates little in the way of insight as to the unfounded nature of her allegations and even His Honour’s comments following her appearance before him in February 2016 to the effect that she was an odd mother have failed to assuage her self-belief as to the veracity and strength of her position as the mother of X and her right to have contact with him.
3. Ms Harding’s psychiatric treatment has not impacted on her core set of beliefs in regard to Mr Watson, and as indicated and consistent with my original impression, those beliefs are driven by psychodynamic factors of loss and hurt when the relationship between them did not continue. What is lost on Ms Harding is the harm of all this is doing to X, demonstrated by her gleeful pursuit of Mr Watson through the Courts without any insight or understanding as to the deeper origins of her disturbance and behaviour. As such, in my opinion Mr Harding continues to be a risk to X’s health.”
The author of the reports was cross examined by all parties. Counsel for the Independent Children’s Lawyer, Ms Dowler, put the following questions to the expert:
MS D: I was just saying that you’ve done two reports with respect to this family and I was asking whether you would agree with me that the mother’s presentation has not altered in that time?‑‑‑No.
She’s delusional?‑‑‑Yes.
Grandiose?‑‑‑Yes.
Insightless?‑‑‑Yes.
Disturbed?‑‑‑Yes.
Harbouring a paranoid view of the father?‑‑‑Yes.
Allegations are bizarre and numerous?‑‑‑Yes.
And demonstrate little insight?‑‑‑Yes.
So notwithstanding that she has had ongoing and – relatively long ongoing mental health treatment, it doesn’t seem to have really helped her health; is that what you would say?‑‑‑Not with regard to her – her delusional system, no. She has received psychiatric treatment in regard to what has been diagnosed as a bipolar illness and she was not demonstrating any features of that at the time that I saw her, and the material provided to me from her treating psychiatrist indicated that that psychiatrist’s view was that her bipolar illness was – was being well treated. And to the extent that it exists I would agree with that, but we’re still left with this condition which was not referred to by the treating psychiatrist and my diagnosis in regard to her delusional disorder has been consistent across both assessments. Her presentation was similar in terms of what you’ve described and which I opined at the time.
‑ ‑ ‑ is it something more psychotic?‑‑‑No, it’s not. It’s a – it’s an unusual condition which – in which someone harbours discrete – what we call encapsulated beliefs but at the same time can lead a relatively normal life. So – and in that regard if her treating psychiatrist believes what she says then the treating psychiatrist essentially sees her condition as being well managed and under control. Where the psychiatrist and I disagree is in relation to these matters and the fact that I’ve seen the husband and I’ve reviewed lots of material. And it is evident to me that her condition has remained stable over the time of the two assessments. That is, that her beliefs remain stable and they are unaltered and they are not able to be changed by the normal persuasion and countervailing opinions. So in that respect Ms Harding’s views have remained consistent across both of my assessments.
So when you say her views have remained consistent over both assessments, does that mean in a sense that no amount of independent evidence is going to change her view of the world?‑‑‑That’s correct, yes. And that’s – that’s very typical of the illness and these – these conditions remain stable over many years. And as I’ve indicated, unless you scratch the surface of those beliefs often people pass for perfectly normal.
So what you’re saying is to the outside world she could relate some of the stories that she relates about the father which are – some of them are quite bizarre?‑‑‑Yes.
And people would accept that as quite reasonable – as relatively truthful?‑‑‑Well, yes, and that includes her treating psychiatrist who’s persuaded. And I’ve indicated that in – when I was in her presence she was very persuasive, I thought, and was very convinced of everything she said, which adds to the persuasiveness of her various comments and arguments.
The mother also cross-examined Dr T and it appeared to me that her observing the cross-examination by the other parties and her own cross-examination provided her with an insight she has not experienced before about her behaviour. She subsequently indicated to me that she would agree to the order about not issuing further proceedings without first seeking leave of this court. To ensure that she understood what she was agreeing to I had the following conversation with her on Day 4 of the trial:
HIS HONOUR: And what I propose to do is make an order that, first of all, the ICL files written submissions and sends you a copy, then I will have the father do some written submissions and send you a copy, so you understand the style and content; right? And then I will get a written submission from you as to why you should have time with your son and how it should be; all right? And why any other aspect of the case – and there’s only two, really. It seems to me you’ve agreed that you should only come back to this court and not just issue proceedings generally. Is that right or not?
MS HARDING: Yes, that’s correct, your Honour.
HIS HONOUR: And it should be under my review. So you don’t issue any more family law proceedings; you’ve agreed to that?
MS HARDING: I agreed. I’ve agreed to that, your Honour.
HIS HONOUR: And you will only come to me and say, “Look, I want to come back to court for this reason.” I will then review it and if I think it’s appropriate I will then let you serve the father with the proceedings and if I think it’s inappropriate I won’t let you proceed. Now, am I right in saying you’ve agreed to that process?
MS HARDING: Yes, your Honour.
HIS HONOUR: All right.
MS SMALLWOOD: Does that mean I don’t have to include that in the submissions, your Honour?
HIS HONOUR: Well, in my view, I think that’s right. So what I’m going to make is an order called – I will tell you exactly so there’s no doubt in your mind what I’m going to do. I’m proposing to make an order under section 102QB of the Act that will prohibit you from instituting proceedings of any particular type under this Act in a court having jurisdiction of this Act – that means any court that has jurisdiction – that is, the Family Court, this Court, the State Magistrates Court – under the Family Law Act without first coming to this court and seeking leave of the court to institute those proceedings. Do you follow that?
MS HARDING: Yes, I do, your Honour.
HIS HONOUR: And you consent to that?
MS HARDING: Yes, I do.
HIS HONOUR: All right. I think I’ve made it clear, haven’t I counsel? Is there anything I can do – I don’t think so.
MS SMALLWOOD: No, it’s absolutely clear, your Honour.
I am satisfied that the mother has filed or caused to be filed many applications and affidavits that were inappropriate, unreasonably numerous and sometimes appear to be based on an irrational basis. In my view, her behaviour falls within s.102QB(1)(a) and sub-paragraphs (a), (c) and (d) of the definition of vexatious proceedings found in Part XIB of the Family Law Act 1975 (Cth). I am further satisfied that even if the mother did not consent to an order pursuant to s.102QB(2), I would have made that order and I note that s.102QB(4) has been satisfied.
Parenting Dispute
Relevant Legal Principles
Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are met by:
(a)ensuring that children have the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the children; and
(b)protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a children’s best interests):
(a)The 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;
(b)the 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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)the children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the children are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what are in the children’s best interests.
Section 60CC factors
The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They 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.
(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).
I shall consider the primary considerations after the sub-section (3) relevant factors (see Collu and Rinaldo [2010] FamCAFC53 at paragraph 335)
Additional considerations are:
As to sub-section 60CC(3) of the Act:
(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;
It is clear from the evidence provided to the court, more particularly, the report by Ms I dated 14 May 2015 that this little boy is anxious about any contact with and his relationship with his mother. I note from page 2 of the report when the suggestion was made that he was to see his mother he was against this proposal and said that he would “…build a time machine to go away.” When the writer queried his reaction he looked to a list of emotions provided by the expert and chose the following:
(a)Alarmed – he said it is because it is annoying it keeps “popping up and I don’t like it.” He said… “it makes my sick feeling in my tummy stronger”;
(b)He also said he felt lonely and empty, “…I want to be with Dad because I don’t get to do any fun stuff with her (Ms Harding) like go to the park, just sit inside and watch TV”;
(c)He also said it made him angry because… “she never listens, seems she doesn’t care”;
(d)He said his mother is mean and she takes things from him and is not interested in being with her just to make her feel better;
(e)When queried about whether his mother enjoyed being with him, he indicated that “…it’s like it makes her feel better because I am away from Dad. I have figured it out”;
(f)Finally, he said he felt unhappy “…because I am not being understood and cared for. She says mean things about Dad and calls him Mr Watson and says things like he has mental problems or the police keep having to take him away and he is bad”; and
(g)He also said “…I don’t want to listen to her extreme name calling.”
Whilst this report was helpful as was the evidence she gave at the hearing, these comments have to be put in context of when the author saw the child around ten weeks after the incident on 12 February 2015. Therefore, I have got to be careful not to adopt those as the clear current views of X but note them as views he clearly expressed some 12 months ago. In my judgment, I will give his comments some weight in this context but they alone will not determine the outcome of this very difficult and unusual case.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
In relation to the father, the evidence was consistent that X enjoys a close, loving and caring relationship with his father. They have a meaningful relationship of significance to them both.
In relation to the mother, the evidence indicates to me that they have a strained relationship at best and a very damaged one at worst. The mother’s past behaviour clearly has impacted on the relationship between X and his mother. To what extent the mother can change this is really in her hands and it appears to me that having digested the comments in the two reports of Dr T she now has to pursue a course of treatment that can deal with her extremely negative view of the father and her delusional disorder.
(ii) other persons (including any grandparent or other relative of the child);
There is no direct evidence under this topic and I cannot comment on it in an informed way.
(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;
In relation to the father he has made every effort to be involved with and communicate with and make major decisions in relation to X. In relation to the mother it is more problematic. It is clear that she has created many of her own problems, possibly not being fully aware of the ramifications of her comments or behaviour. Nonetheless, spending time with X has become a real problem given her recent past behaviour.
(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;
The father has maintained the child to the best of his financial capacity. There is no doubt that he does his best to ensure that X is well supported. The mother from time to time appears to make a contribution either direct or indirect but claims she is financially challenged to be able to provide the support that one would expect.
(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
Given the sworn material supplied to the court and the evidence produced, I would expect that X would be devastated should he not reside with his father. It just would not be in his best interests to remove him from the day to day care of his father given the closeness and importance of his relationship with his father.
In relation to the mother, any separation from her would not be a major issue for X. The question appears to be more of what relationship can he have with her that would be effective and happy for him?
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I cannot comment on this paragraph given there was no evidence led on this topic.
(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;
Not relevant.
(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;
It follows from the evidence of Dr T and other witnesses that the mother has a poor capacity to promote X’s emotional and intellectual needs. The mother has to fully deal with this issue before she can consider having a significant relationship and developing a close and loving relationship. It may be there in the future but it is really in the mother’s hands to deal with her many problems that currently trouble her capacity to properly parent X.
(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;
This sub-paragraph is dealt with under sub-paragraph (f) above.
(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;
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Whilst the mother may say she has been responsible in the past, history indicates that her ongoing delusional views of the father have impacted on her in a significant and negative way. She cannot exercise in a responsible way the duties of parenthood until she deals with this issue and ensures that her future relationship with X is stable and satisfying for him.
(j) any family violence involving the child or a member of the child's family;
It is clear that the events of 12 February 2015 seriously impacted on the emotional wellbeing of X. The mother’s behaviour on that day and her female friend were both confrontational and inappropriate to the extent that X was put in real fear and distress. I understand from the evidence subsequently the father sought an Intervention Order through the Victorian Police against the mother. I also understand there are ongoing proceedings in the State Magistrates’ Court about such issues.
(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;
There are current proceedings in the Melbourne Magistrates’ Court where the father seeks an Intervention Order against the mother.
(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;
Clearly the section 102QB order will assist in the future and I will seek to draft orders that minimises any proceedings in relation to this child. There will be a safety valve in place in that any proceedings brought by the mother will first be vetted by me or some other judicial officer of the court to ensure that there is merit in the proposed application and it is in the child’s best interests that any proceedings should continue.
(m) any other fact or circumstance that the court thinks is relevant.
One of the options available to the court is to stop all time with X pending any treatment undertaken by the mother; however that treatment could be a long term or short term issue. The court just does not know. The other difficulty for the court with stopping any time with the child would be the current impact of this on X. I note the proposals of both the Independent Children’s Lawyer and the father when this trial commenced was for the child X to have an ongoing relationship with the mother in a contact centre.
I note that near the end of Day 1 of the trial, counsel for the father advised the court that her client retracted the proposal of supervised time with the mother at the Berry Street Contact Service and would now seek an order for no time with the mother and child. On the basis of this I raised the issue of adjourning part-heard and obtaining a Family Report, given I did not order one at the interlocutory stage as stopping all contact was not a matter before the court. There was some discussion of this topic when counsel for the father then announced that... “I withdraw the amendment and we will just proceed. My client cannot have an adjournment. He just can’t.”
Primary Considerations
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship””.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…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 [sic] one.”
At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”
It then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).
The prospective approach, which I prefer, was set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”
I find at this stage that given the mother’s persecutory type, Delusional Disorder and her other current circumstances, that in the facts peculiar to this case, it is not in the best interests of X to have a meaningful relationship with his mother. It is not possible for this currently to occur because of the need to protect him from psychological harm that could occur should there be substantial and significant or other time with the mother (see sections 60CC(2)(b) and (2A)).
Parental Responsibility
I find that the evidence demonstrates that the parents could not effectively undertake equal shared parental responsibility. The mother’s Delusional Disorder, in my view, makes it currently unworkable for the parents to share equal parental responsibility. It is clearly not in X’s best interests to order this and his father should exercise sole parental responsibility. I note that this is also proposed by the Independent Children’s Lawyer.
Conclusion
On the fourth day of the trial, counsel for the Independent Children’s Lawyer, Ms Dowler, cross-examined the mother as follows:
MS HARDING: I’m on the bus, coming in here this morning. The man sitting next to me – I was paranoid. Totally paranoid.
Why?‑‑‑He started talking about the FCC. I don’t even know if that was real – and I got off the bus, and I thought ‑ ‑ ‑
On the bus this morning?‑‑‑Yes.
So a man was sitting next to you?‑‑‑Sitting there. Yes.
How old was he, do you think?‑‑‑Older than me.
What, sort of, in his mid-forties? Something like that?‑‑‑Might be a little bit older than that. Yes.
And he’s talking about the Federal ‑ ‑ ‑?‑‑‑The FCC, and directions. How to get there. Very loudly, on his phone.
HIS HONOUR: When you say, “The FCC” what do you mean?‑‑‑Federal Circuit Court, your Honour. Yes. And he got off at the (omitted) Hospital. It’s on (omitted) Road. And when he got off ‑ ‑ ‑
MS DOWLER: And did you speak to him?‑‑‑Pardon?
Did you speak to him?‑‑‑No. I didn’t. I sat next to him, and then I got up and sat somewhere else because he was talking quite loudly – but when – when – even the minute he started speaking I felt paranoid. I felt that’s odd, but that’s just how I was responding to that because he said those things.
You felt paranoid because he mentioned the Federal Circuit Court?‑‑‑Yes. Yes, I did.
Well, when he got off at the (omitted) Hospital, did you feel relieved?‑‑‑No, I was a bit – I just was a bit worried, just a bit worried.
You know people who worked at the (omitted) Hospital, don’t you?‑‑‑Not many now.
Do you think that was part of what he was up to? He was seeing people you knew there?‑‑‑No, I didn’t think that.
Okay?‑‑‑I just thought it was odd.
Why?‑‑‑Because he was talking very loudly. No-one else was talking on the bus – really loudly. And I was sitting next to him, so I moved.
Okay?‑‑‑And he said, “Can you give me the” – he said, “The FCC; can you give me the directions to the FCC,” very loudly and I just thought – it just – it was like atrigger. It was like a – and I just – that’s how it made me feel. It was like that’s a bit odd. It was a bit odd. And yesterday when I was sitting outside with Dr F, I thought I saw on her lap a piece of paper that said (omitted)?
Yesterday?‑‑‑Yesterday.
Sitting outside – sorry, I’m writing some notes. Sitting outside court with Dr F?‑‑‑Yes.
You thought you saw a – was it a letter, did you say?‑‑‑It was like a ‑ ‑ ‑
A piece of paper?‑‑‑It had lines on it with small writing.
Lines with small writing?‑‑‑And the top – the top right corner it had (omitted). And when I saw that, I felt why has Dr F got that.
So at the top it had (omitted) written, did it?‑‑‑Yes, in the top right-hand corner.
In the top right-hand corner. Yes?‑‑‑And then later in the day ‑ ‑ ‑
Did you ask her about that?‑‑‑No, but I ‑ ‑ ‑
Why not?‑‑‑I thought it was odd. I didn’t ‑ ‑ ‑
Yes, you thought it was odd?‑‑‑I thought it was odd.
So ‑ ‑ ‑?‑‑‑But I asked my support worker later in the day. I said I felt paranoid about that.
But you felt paranoid about it – why did you feel paranoid about it? What made you feel – what put on paranoia?‑‑‑Well, (omitted) is Mr Watson’s business.
I understand that’s his insurer?‑‑‑Yes, that’s his business, yes.
His income insurer?‑‑‑Yes.
Not his business; it’s his income insurer, yes?‑‑‑No, I don’t mean business.
Yes?‑‑‑That’s his private business. That’s what I meant by that.
As I understand it, and I’m sure I will be corrected, it’s his income insurer he gets as consequence of ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ having an insurance policy?‑‑‑Yes.
Why didn’t you ask – why didn’t you say something to Dr F about it at the time? Why didn’t you say, “How come you’ve got a document on your lap that says (omitted)?” You said you felt ‑ ‑ ‑?‑‑‑I just felt – it felt – I just thought to myself why would she have that?
And why didn’t you ask her?‑‑‑I’m not sure. I’m not sure but ‑ ‑ ‑
And later your support worker told you it wasn’t there; is that right?‑‑‑I don’t know. No, I just told her that I felt paranoid that Dr F would have that – that ‑ ‑ ‑
But you didn’t you say that you found out there wasn’t any document on Dr F’s lap?‑‑‑No, because that wasn’t asked. I’m just questioning it now if what I was seeing, if it was there. I think it was there.
Well, if it wasn’t, then you were having a hallucination?‑‑‑That’s right, yes.
You didn’t think you should have a discussion with your doctor while she was here about that?‑‑‑Well, I was trying to process a lot of things yesterday and ‑ ‑ ‑
So it could be an hallucination – sorry, hallucination?‑‑‑It could be, yes.
HIS HONOUR: And this fellow on the bus this morning, is there some doubt in your mind that, in fact, he existed?‑‑‑When he got off, your Honour, I was worried.
But did he actually exist?‑‑‑Well, I didn’t take a photo of him or get any – I don’t know, your Honour. That’s how – that’s what my recollection of the morning was. I took a phone call from the clinic that I was going to go to today and I tried to reschedule that yesterday and I took a phone call and I was walking to the bus.
…
I see. Well, could it also be that your views of the father and his partner are somewhat deluded as well?‑‑‑Could be, yes.
So you accept that’s possible?‑‑‑Yes, I do.
…
And perhaps all those other things we’ve talked about – the pornography, the Nazi thing, all those other issues we talked about – could they, in fact, just be products of your mind as well?‑‑‑Yes. Yes.
…
If I’m going too fast at any time, tell me to slow down. Now, you listened yesterday to what Dr T said?‑‑‑Yes.
And he described you as having a delusionary disorder. Have you spoken to Dr F about what that might mean?‑‑‑When you – well, when I’m looking for psychiatrists, you look for the ones that are experts – well, I like to – I want an expert in it so I can have a rapid recovery but it doesn’t always work that way and Dr F specialises in bipolar and when I – when I left the (omitted) Hospital, that network there, that’s who was – that was the referral for that condition, but I don’t think we’ve really talked about the delusional side of things with Dr F.
…
He’s a very sensitive little boy too and not being able to reach out and hug him because they wanted him to see if he wanted to hug me first, that was – that was difficult. That was really difficult and ‑ ‑ ‑
Well, we will talk – we will talk a little more about the contact centre in a moment but I’m wondering now whether perhaps you’re accepting what Dr T said: you need to have some more assistance with the delusional part of your personality because it’s not what you’ve been concentrating on with Dr F really, is it?‑‑‑You’re right. Yes, you’re right.
I should also comment at this stage that Dr F’s evidence must be seen in light of her role in only treating the mother’s Bipolar Disorder and it was Dr T’s assessment, which I accept, that the mother and Dr F had a relationship in the style of a ‘folie à deux’.
Therefore, I put little weight on Dr F’s evidence and that of the mother and her witnesses. Where the evidence of the mother and the father did not agree, I was far more confident in the father’s evidence being accurate and reliable.
The Independent Children’s Lawyer’s written final submission filed
12 May 2016 at page 4 proposes the following:
“It is the position of the Independent Children’s Lawyer, in the view of all the evidence, that there should be no orders for time or any contact whatsoever between X and his mother. The Independent Children’s Lawyer is concerned that any time with the mother will not only cause great distress and further traumatise X, but that the mother will use such time to gain knowledge of the father and his household.”
I read that submission carefully, along with the written final submissions of the father and the mother. The topic of denying any time with the mother for X was raised initially by the father’s counsel near the end of day one and was subsequently withdrawn. I can well understand both counsel for the father and the Independent Children’s Lawyer seeking this order, however at this stage it appears to me to be inappropriate for the following reasons:
(a)Ms I’s report dated 14 May 2015, although helpful, is dated. In her report Ms I at page 2 said... “any future contact with Ms Harding would need to be supervised and reviewed regularly…” She changed her position when giving oral evidence to one of no time with the mother but she did not give evidence that she had recently reassessed X. The basis for her changed position remains unclear to me. She appeared to be giving evidence about X as she found him around April and May, 2015. It was a useful starting point but the lack of a recent updated assessment leads me to put less weight on her evidence for current purposes;
(b)There is no family report to assist the court with a current assessment of the relationship between the mother and the child detailing X’s views and concerns. There are no proposals from such an expert as to time with and whether or not it should occur;
(c)There is no family report writer who, having seen the parties and provided a report, can give viva voce evidence to the court at trial about the changing proposals of the parties and have her or his evidence tested by cross-examination;
(d)Any ‘time with’ that I order will be conditional upon the mother having treatment and not being a threat to X’s emotional and psychological well-being;
(e)The expert undertaking the treatment will be in a better position to determine when, if at all, there should be any supervised time with;
(f)The supervised time with, should it commence, will be very limited to maintaining some form of relationship and the contact centre should, on request, provide a written report of what has occurred;
(g)Stopping all contact at this stage could have a crushing effect on the mother emotionally and may prevent her seeking treatment that she so desperately needs; and
(h)Since the events of 12 February 2015 when there was unsupervised time with, there have been a number of supervised contact periods between X and his mother. These are described in a report annexed to the mother’s large affidavit filed 29 March 2016 and the father’s affidavit filed 26 November 2015 titled “Family Contact Service”. It sets out observations of the supervisor and indicates that, whilst X was described as being a little nervous, anxious and quiet on occasions, there were periods where he appeared to enjoy the experience. However, I do note it was at a play centre and not a Contact Centre.
In all the circumstances, whilst currently there will be no time with X pending the mother undertaking treatment, she has the key to the door should she successfully undertake treatment and therapy.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 15 August 2016