Harding & Watson (No 2)
[2021] FCCA 2004
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Harding & Watson (No 2) [2021] FCCA 2004
File number: MLC 12820 of 2007 Judgment of: JUDGE O'SHANNESSY Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – vexatious litigant – advisory or hypothetical opinion – pre judgment – interpretation of orders – for every solution there is a problem – application dismissed Legislation: Family Law Act 1975 (Cth), ss 60CC, 64B, 102Q, 102QB, 102QD, 102QE, 102QF, 102QG Cases cited: Colburn & Cleese (2020) ¶FLC 93-995
Oberlin & Infield [2021] FamCAFC 66
Rice & Asplund (1979) FLC ¶90-725
SPS & PLS (2008) ¶FLC 93-363
Vissell & Vissell [2021] FamCAFC 76
Number of paragraphs: 150 Date of last submission: 29 June 2021 Date of hearing: 19 November 2020 Place: Melbourne Counsel for the Applicant: Mr D Mort Solicitor for the Applicant: St Kilda Legal Service Co-Op Solicitor for the Respondent: Robinson Gill ORDERS
MLC 12820 of 2007 BETWEEN: MS HARDING
Applicant
AND: MR WATSON
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.All extant applications be dismissed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Harding & Watson (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The dispute in this matter relates to the operation of orders, including final orders made on 15 August 2016 (the Final Orders) and whether the Applicant, Ms Harding (‘the Mother’) should be permitted to seek relief concerning those orders that specify the spend time arrangements for the child X born in 2007 (‘the child’). The Respondent Father is Mr Watson (‘the Father’). The Mother is now 49 years and the Father now 54 years.
The child has not spent time with his Mother for many years. On 21 April 2016 (and confirmed on 15 August 2016) the Mother was declared to be a vexatious litigant. To make application about the child’s welfare the Mother needs the permission, also called “leave”, of the Court.
The orders of 15 August 2016 include orders for the child to spend supervised time with the Mother for two hours four times a calendar year but that time and the commencement of it is subject to a number of steps. Upon the appointment of an "independent psychiatrist" and such therapy and treatment of the Mother as may be advised by the independent psychiatrist (but not treatment by the independent psychiatrist) and upon the independent psychiatrist having formed his or her professional opinion that the supervised time should commence and the independent psychiatrist advising the Father of steps taken and meeting the Father and discussing his concerns and if the Mother has taken all necessary therapy/treatment and the independent psychiatrist "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 the child", then supervised time is to proceed.
The child's circumstances as at 15 August 2016 are described at [1-2] of the reasons of Judge Curtain delivered that day:
1.(The child) was born three months prematurely in 2007 and came into a world of distress, confrontation and instability when he was in the presence of both of his parents.
2.The parents… met in 2006, commenced cohabitation just prior to Christmas 2006 and separated on 15 July 2007 when (the child) was just over three 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.
At the time of the hearing of the controversy determined by the 15 August 2016 orders the Mother sought that she have sole parental responsibility, that the child live with her and that the Father have two hours per month supervised time with the child. At the time of those orders the Mother suffered from mental illness.
Those reasons are (anonymised) Harding & Watson [2016] FCCA 1999, 15 August 2016. I am bound by, and rely upon, those findings and these reasons should be read in conjunction with that decision.
The Mother is now represented by solicitors and the Father continues to be represented by solicitors. The court file in this matter is what is colloquially known as a “Double Box File”, that is the courts ordinary pre-electronic filing procedures of having one or two or three folders to retain the filed documents is inadequate and the files are held in document storage boxes. The court file shows that, apart from correspondence and not counting Court orders or exhibits tendered as hearings, there have been to this day approximately 170 documents filed in this matter between 26 November 2007 and 10 December 2020. The Court file shows that the matter has been dealt with on at least 32 occasions.
ISSUES IN DISPUTE
The parties now disagree and seek the Court to determine these four questions:
(1)whether the Mother can be heard before the Court if she has not complied with the vexatious litigant provisions of sec 102QB of the Family Law Act 1975 (Cth) (‘the Act’); and
(2)whether a psychiatrist who was the court appointed expert, Dr B, became the “independent psychiatrist” in late 2018.
(3)who can be or is the “independent psychiatrist” contemplated by the Final Orders; and
(4)whether orders subsequent to the Final Orders ended the Mother's ability to bring any application; and
The Mother’s oral and written submissions also complain about and query whether the 15 August 2016 orders are contradictory or impractical or unable to be complied with. Ultimately the Mother does not seek a variation of those orders and in that circumstance it is unnecessary that I consider those propositions further.
The Father's principal submissions included;
·The Court ought not hear and determine any issue relevant to the proceedings that effects the Father without a proper application being brought by the Mother (T42 19.11.20), and that the Mother's application, such as it was, did not comply with the mandatory provisions of section 102QB of the Act
·That subsequent to the Final Orders by the 10 December 2018 orders, “Dr B becomes the independent psychiatrist” (T44 19.11.20) by the effect and context of the 10 December 2018 orders (T46 19.11.20).
·That the Mother's treating doctors need to go back to Dr B and advise how her treatment has progressed and ask him to recommend that the child's time with the Mother now recommence (T45 19.11.20).
·That Dr C, as proposed by the Mother, is not independent and cannot be the “independent psychiatrist”.
·That the Mother's applications now before the Court were merely to again harass the Father.
The Mother, as a litigant in person, had filed an application in a case in June 2019 and again in July 2019 that sought permission to bring proceedings and vary the Final Orders. Those applications did not attempt to come to grips with either the provisions of section 102Q of the Act or the provisions of the 15 August 2016 orders. Her counsel did not agitate those applications and I regard them as abandoned.
Before that application was abandoned the Mother retained her current solicitors and in answer to a questionnaire sent out by the court for the purpose of a call over in the week of 6 October 2020 under the heading of “main issue in dispute” the Mother asserted: “Mother complying with …orders of 15 August 2016. Mother requests clarification of “independent (psychiatrist)”. In support of that “request for clarification” an affidavit prepared by her solicitor and filed 6 October 2020 the Mother complained of not being served with orders, as ordered, relating to the child concerning the Father and his by now ex-partner (a relationship subsequent to the Mother). Relief or Orders relating to this complaint and the orders described at [20] of that affidavit were not pressed by the Mother's counsel.
In addition the Mother deposed to having approached ten "independent" psychiatrists and at [16] said:
[16] each has said that they are happy to:
a. interview me,
b. meet with the father,
c. read the reports of Dr B;
d. read a report from my treating psychiatrist;
e. produce an independent report.
At [19] the Mother asserted that her treating psychiatrist Dr D, has recommended Dr C as an independent psychiatrist and that, “In 2014, Dr C was a Registrar and worked under the supervision of Dr D. Dr C met me in her capacity as a trainee psychiatrist on 4 occasions, but has not seen me since 2014” and at [21-22] sought that the Court confirm that the "independent psychiatrist" should undertake the exercise set out at [16] and that Dr C "be appointed as an independent psychiatrist for the purposes of producing an independent psychiatric report addressing the appropriateness of X spending supervised time with me".
RECENT APPLICATIONS
The vexatious litigant order was made on 24 April 2016. The extant applications were the Mother's application in a case filed 18 June 2019 and 15 July 2019 when the Mother represented herself.
Affidavits filed proximate to the June 2019 application point towards the gist or substance of the orders that would be sought upon permission to bring proceedings being granted at that time. The affidavit of the Mother filed on 18 June 2019 asserts:
The mother is seeking a shared care arrangement that would be week about
Less than a month later the Mother filed another affidavit (on 12 July 2019) and the assertions of that affidavit included:
[1] … My updated application is for sole parental responsibility
Subsequent to that application the Mother has retained her current solicitors, the St Kilda Legal Service, who retained counsel who has previously appeared in the matter. I regard those two applications as abandoned and they will be dismissed.
The Judge who had dealt with the matter on 12 occasions retired in October 2020. I called over this case and 64 others in the week of 5 October 2020.
On 6 October 2020 the Mother filed the affidavit referred to above.
On 18 November 2020 the Father had filed a detailed 4 page submission that in summary asserted;
(a)That the Mother's affidavit in support of her application did not comply with the requirements of section 102QE of the Act and hence her current application/s should be dismissed pursuant to section 102QF of the Act.
(b)That irrespective of compliance with section 102QE of the Act leave to bring proceedings can only be granted if I am satisfied the proceedings are not vexatious.
(c)That the present application seeking assistance from the Court in the interpretation of the final orders is brought without reasonable grounds.
Those written submissions were supplemented by oral submissions including those matters cited above. I fixed the hearing of this controversy for 19 November 2020. I heard the matter that day, made orders requiring further information be provided and reserved my determination. The Mother was represented by counsel and the Father by his solicitor, Mr Robinson. The matter, one of four listed that day, proceeded by video conference. Factual issues arose and I ordered that I be provided with further information from a psychiatrist, Dr D, and Victoria Legal Aid. The parties and the Court were provided with the further information on 10 December 2020. The additional information was an affidavit of Ms Asher the Mother's solicitor containing a short note from Dr D and an email from Victoria Legal Aid. I have marked the email from Victoria Legal Aid exhibit M1 10.12.2020.
On 8 October 2020 I was told that the matter would be able to be accommodated in a ½ day hearing. To determine the dispute it became necessary for me to read psychiatric reports, previous judgements and court orders. Both parties addressed me on the basis that I needed to understand the history of the matter to deal with the current controversies. I have attempted to do so. The documents I have referred to are described in these reasons.
I have had regard to the following documents:
(1)The documents of the Mother filed in her extant application (when a litigant in person) and being;
(a)The Mother's Application in a case filed 18 June 2019;
(b)The Mother's Application in a case filed 15 July 2019;
(c)The Mother's Notice of Risk filed 16 July 2019;
(d)The Mother's affidavit filed 18 June 2019;
(e)The Mother’s affidavit filed 12 July 2019;
(f)The Mother's affidavit filed 16 July 2019;
(g)The Mother's affidavit filed 6 October 2020;
(h)The affidavit of Dr D filed 19 September 2019;
(i)The affidavit of Dr E 19 September 2019;
(j)The affidavit of Mr F filed 19 September 2019;
(k)The affidavit of Mr G filed 19 September 2019;
(l)The affidavit of Ms H filed 19 September 2019;
(2)The three reports of Dr B of 2008, April 2016, and 10 October 2018.
(3)The reasons of Judge Curtain of 15 August 2016, Harding & Watson [2016] FCCA 1999 (anonymised).
(4)The 32 Court orders made in the proceedings including the orders of 25 July 2018 and 10 December 2018 and the transcript of the proceedings on 25 July 2018.
(5)Exhibit C (email of Dr B to the Independent Children’s Lawyer dated 29 November 2018) to the orders of 10 December 2018.
(6)The documents of Exhibit A of 8 December 2020 being the further affidavit of Dr D and the email from Victoria Legal Aid (confirming compliance by the Independent Children’s Lawyer with the orders of 10 December 2018 at that time).
(7)The affidavit of Julie Asher filed 10 December 2020.
At the time of the hearing on 21 April 2016 (actually day 4 of a four day hearing) there remained two applications of the Mother alleging a contravention of orders relating to the child against the Father. Those applications had been filed on 27 March 2015 and 26 October 2015. On 15 August 2016, when the reserved reasons and orders were delivered, those two then extant applications were dismissed.
Relevant to the current dispute significant orders were made on the same day, 15 August 2016, and it is those orders that are at the heart of the current dispute between the parents.
The 15 August 2016 orders were obtained after a hearing that proceeded over the 18th, 19th, 20th and 21st of April 2016 with the last written submission relevant to the matter being provided on 9 June 2016.
The orders of 15 August 2016 provided as follows;
1.The Contravention Applications of the mother filed 27 March 2015 and 26 October 2015 be dismissed.
2. All prior parenting orders be discharged.
3.The father have sole parental responsibility for the child X born in 2007 (“X”).
4. X shall live with the father.
5.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.
6.A copy of the two reports of Dr B 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.
7.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.
8.Subject to orders 5, 6 and 7 herein, X shall spend supervised time with and communicate with the mother:
(a)At the J Contact Centre, Suburb K 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.
9.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.
10.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 in 1971 may not, without leave of a Court having jurisdiction under this Act, institute any proceeding under the Act against the Respondent father MS WATSON born in 1966.
11. The order appointing the Independent Children’s Lawyer be discharged.
12. All extant applications be dismissed.
13. Certify for Counsel.
A summary of some of the history of the matter includes the Court orders made. I am bound by the reasons of the learned trial Judge (Judge Curtain) of 15 August 2016 (addressed in part later). Those reasons accepted the evidence of the opinions of Dr B that was contained in his 2016 report (and that relied in part upon his 2008 report) and his oral evidence in the four day April 2016 hearing that concluded with the (reserved) reasons and orders of 15 August 2016.
MANY COURT EVENTS: A SUMMARY
Court proceedings were commenced by the Father on 26 November 2007 when he filed an application seeking final parenting orders to the effect that the parents have equal shared parental responsibility and the child live with both parents (equal time). The child was then only 5 months old.
On 29 January 2008, before the child's first birthday, the proceedings were before the Court, the Mother was represented by counsel and the Father by his solicitor. Orders were made for parentage testing, and that the parties have equal shared parental responsibility, that the child live with the Mother and the Father spend supervised time with the child, initially one hour and then two hours on specified occasions and an Independent Children's Lawyer was appointed.
On 21 February 2008 the parents and the Independent Children’s Lawyer were represented by counsel and orders were made for the father to have three hours of supervised time three times per week and at the conclusion of nine such sessions and if the supervisor advises of “no issues or concerns” then the time was to be unsupervised. On the same day a private family report was ordered.
On 27 March 2008 the parents were represented by counsel and the Independent Children’s Lawyer appeared. By this time the Father had filed a contravention application and an application in a case and further orders were made for the Father to have three hours of supervised time each week with a different supervisor.
On 9 May 2008 the family report ordered previously was filed with the court and raised issues as to the psychiatric health of the parties.
On 14 May 2008 (the child being a bit more than one year old) orders were made that the Father spend time with the child three times a week on 15 occasions for five hours and then seven hours thereafter and the start and end of the Father's time on the first 15 occasions was to be supervised and not thereafter. I infer that it was the nature of the allegations of the Mother against the Father that resulted in his time being supervised. The Father's time was to be at a specified children's play centre. The poor relationship between the parents was demonstrated by their being mutual orders restraining each of them from abusing, insulting, belittling, rebuking or otherwise denigrating the other. By consent, Dr B, a psychiatrist, was appointed as a single expert to undertake a psychiatric examination and report of both parties concerning the matters raised in the family report filed on 9 May 2008.
The First Dr B Report
On 20 July 2008 Dr B prepared a report concerning the Mother's psychiatric health. At that time Dr B had considered that the Mother had developed a delusional disorder and that the Father did not have a psychiatric condition. Dr B considered that the Mother was insightless, grandiose and had anxiety and panic attacks in the context of what she perceived as a major threat by the Father to take the child from her. At that time Dr B considered it was imperative that the Mother undertake psychiatric treatment and that her treating psychiatrist needed to have the benefit of the Family Report and his (2008) report to understand the circumstances. At that time Dr B was concerned about the Mother's statements that she would simply act on her own accord or take things into her own hands.
On 19 August 2008 the matter came on for final hearing but was adjourned part heard on the Mother's application to recommence in the week beginning 24 November 2008 (with an estimated duration of five days) and other orders were made. All parties were represented by counsel and the mother by senior counsel. The Father was to have time three times a week from 9am until 3pm for four weeks and thereafter from 9am until 5pm. By now the child was almost 18 months old. At paragraph 6-7 of those orders it was ordered:
6.That the mother communicate and attend upon a treating mental health professional or professionals as directed by those professionals, and comply with all prescribed medications, treatments and directions of those professionals including attending all appointments.
7.That the mother keep the Independent children's lawyer advised of the names and contact details of her treating medical health professionals and forthwith provide to those professionals an authority for them:
(a) to discuss her progress with independent children's lawyer; and
(b)inform the Independent children's lawyer should the mother failed to comply with order six in any way.
Context is added to these orders by the Mother's account to Dr B in 2016 that, “she had had a breakdown following the court hearing after (his 2008) assessment. She had thought this was in July/August 2008.” She had told Dr B that she had wandered out onto L Street, could not speak and was later taken to the M Hospital and later diagnosed with Schizoaffective Disorder and it was noted in those orders that the Independent Children's Lawyer would provide a sealed copy of these orders to the M Hospital CAT Team treating the Mother.
On 24 November 2008 the matter was again before the court and the Father and Independent Children’s Lawyer were represented by counsel and the mother was represented by senior and junior counsel. The orders provided for a final hearing listed on 13 July 2009.
In 2009, according to the Mother's account to Dr B in 2016 she had had to sell her house and ended up in debt and suffered an overdose in 2010.
On 13 July 2009 interim orders were made by consent with the same senior and junior counsel representing the parties as on the previous occasion and it was ordered;
•that the matter be transferred to the Family Court of Australia (where matters expected to take more than three days are usually heard); and
•that the parents have equal shared parental responsibility; and
•that the child live with the Father from Monday morning until Thursday evening in each week and otherwise live with the mother; and
•provided for with changeover to be at a play centre but with the parties to apply to enter a (well known) child contact centre changeover program at Suburb K.
The child was then just over two years old.
On 4 November 2009 the matter came before Justice Cronin of the Family Court of Australia and the parties were represented by counsel and orders were made by consent that the orders of 13 July 2009 remain in force but with changeover at the children's play centre at the Royal Children's Hospital and the McDonald's restaurant in N Street, Suburb O.
Move to child living week about
In late December 2010, by consent, it was ordered that the child would live with the parents on alternative weeks and the orders and if the changeover cannot occur at P Street kindergarten take place inside the police station at the corner of Q and L Street and that X commence kindergarten at Suburb O in January 2011 and the matter was fixed for final hearing before Justice Dessau on 7 February 2011 with an estimate of four days.
Then child to live with the Father from 3 ½ years
On 9 February 2011 Justice Dessau ordered, by consent, that the Father have sole parental responsibility for the child, that the child live with him and that the Mother spend two hours of supervised contact each week with the child. The orders provided that there be an updated family report prepared not less than five months from the date of these orders to address the relationship between the mother and the child and to ascertain the report writer's view whether the child was ready to increase time with the Mother including addressing the Mother's capacity to care for the child in an unsupervised setting taking into account the mother state of mental health as reported by her treating professionals. The child was then 3 ½ years.
On 30 August 2012 the Mother filed an initiating application seeking that the parties have equal shared parental responsibility, that the child live with the Father and have time with the Mother.
The Final Orders of 2012: Live with the Father and day time with the Mother
On 8 October 2012 (the child was then 4 ½ years old) the parents were represented by counsel and in what was described as final orders, it was ordered that the Father have sole parental responsibility for the child and that the child live with the Father and spend time with the Mother each alternative Saturday from 10am to 5pm and each Thursday evening with the Mother to 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 six months from that date.
The Court also noted the then intention of the parties to attend mediation no sooner than July 2013 should variations to the child's time be sought by either of them and that prior to that mediation the mother would provide an updated medical report as to her state of health and her compliance with medical direction.
On 21 June 2013 an incident occurred where it was alleged the Mother attended the child's school, was disorientated and muttering to herself and had left the school in an ambulance. In June 2013 the Mother was admitted to a psychiatric hospital for two weeks and then diagnosed with Bipolar illness.
On 2 August 2015 the Mother filed a further initiating application seeking final orders and interim orders. The interim orders sought were that the child live with the father and that the child spend time with the mother each alternative weekend from Friday after school until the following Monday before school and each Wednesday from 4.30pm until the following Thursday at 7:30pm, that is an arrangement of five nights in each fortnight with the Mother.
Rice & Asplund
An established doctrine relating to the practice of how the best interests of children are to be determined pursuant to the Act is the doctrine or rule known as Rice & Asplund (1979) FLC ¶90-725 (‘Rice & Asplund’). The rule has been refined and restated in precedent cases over many years since 1979 and simple statements of the rule can mislead but the following is generally accepted as settled law: Because repeated applications to court are not in the best interests of children or society, where a final order has been obtained, before a further application can be brought there must be evidence of a substantial change in circumstances sufficient to justify the re-litigation of the children's arrangements (for a detailed analysis see for example SPS & PLS (2008) ¶FLC 93-363). This is different to the general law concerning almost all other legal disputes where the final determination of a legal controversy between parties forever binds them save for very limited circumstances such as fraud.
On 14 August 2013 the Mother was represented by her solicitor and the Father by counsel and, I infer by the application of the principle of Rice & Asplund, it was ordered that the Mother's application filed on 2 August 2013 be summarily dismissed, that the parties attend a dispute resolution practitioner before filing any further application and the Mother was ordered to pay the Father's costs fixed in the sum of $3150.
By notice of appeal filed on 11 September 2013 the Mother appealed that decision. The appeal was heard the following year.
On 25 November 2013 the mother issued a contravention application against the Father. That application was returnable in Court on 10 February 2014 and on that day the parties were represented by counsel and count one of the contravention was withdrawn and count two was dismissed and the Father's costs were fixed in the sum of $2000 and reserved.
On 2 October 2014 and the appeal against the 14 August 2013 orders (referred to above) was dismissed with costs against the Mother.
The February 2015 Confrontation: The Day of the Big Chase
On 12 February 2015 at a time close to an intended changeover for the Mothers supervised time there was a confrontation between the Mother in company with a friend or associate and the Father who had the child with him. Following this incident the Father ceased to provide the child for supervised time until further orders were made. Subsequent contravention applications were brought by the Mother covering the period following the confrontation of 12 February 2015. The child described this event as the “day of the big chase” and found it distressing. Later (in 2016), in a four-day contested hearing where the parties were cross examined, Judge Curtain found that the Father had a reasonable excuse for not following those orders at the time.
A family report was ordered and prepared and dated 14 May 2015 (the child was then 8 years) and some of the comments of the report writer and the child that were recorded in that process included the following (and these are taken from the reasons of Judge Curtain delivered on 15 August 2016);
50.…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…”
…
(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”
…
(f)… he (the child) said he felt unhappy "… Because I'm not being understood and cared for. She says mean things about dad and call him Mr Watson and says things like he has mental problems or the police keep having to take him away and he is bad…
(g) … “I don't want to listen to her extreme name-calling”
On 1 July 2015 Judge Curtain dealt with the matter (for the first time), there was no appearance for the Father and the matter was adjourned for directions to 11 August 2015.
On 11 August 2015 the Mother was represented by her solicitor and the Father by counsel and it was ordered that the then current orders providing for the child to spend time with the Mother be suspended and that thereafter the child spent supervised time with the Mother for no less than two hours per fortnight at a contact centre agreed between the parties and in the event there was a waiting period beyond four weeks such time be supervised by an adult nominated by the Mother and approved by the Father to act as supervisor. All extant applications were adjourned to 4 December 2015.
Further applications were issued and the matter came before Judge Curtain again on 16 September 2015 and all extant applications were consolidated to be heard on 4 December 2015. The parties were also to ensure that the Mother's supervised time was to occur supervised by the service conducted by Ms Robinson at the expense of the Mother.
At this time the Mother was attending upon Dr S and Dr S prepared three reports over the next seven months concerning the Mother's health and those reports were dated 20 May 2015, 15 September 2015 and 27 November 2015.
On 4 December 2015 the matter came before Judge Curtain and the matter was adjourned for final hearing with priority to 18 April 2016 with an estimated hearing time of two days. It was ordered that the Mother take all medication promptly as described and continue to attend her psychologist as directed and the child was to spend two hours with the Mother on the first Sunday of each month in February, March and April supervised by Ms Robinson.
On 2 February 2016 the Mother appeared in person before Judge Curtain and there was no appearance for the Mother. An Independent Children’s Lawyer was appointed and all extant applications adjourned to 18 February 2016.
On 18 February 2016 the matter was again before Judge Curtain, the Mother appeared in person and the other parties were represented by counsel. It was ordered that the Mother attend upon Dr B as directed by him for the purposes of a psychiatric assessment of the parents for the hearing of the matter commencing 18 April 2016. Dr B had prepared a report of the Mother's health eight years earlier in 2008.
On 5 April 2016 Dr S prepared a further report. The history given to Dr S was of bipolar disorder and treatment by Dr S had consisted of supportive psychotherapy, continuing education, medication and monitoring. At that time the Mother was medicated with Lithium and Quetiapine. Dr S describes the Mother's blood levels of lithium at that time as therapeutic. Significantly for the current controversy between the parties, Dr S's report included the following observation (taken from Dr B's 2016 report):
“During this time Ms Harding has related difficulties with the father of her child. She recounts instances of his persecuting her and my impression that these are factual rather than delusional. This persecution is said to have taken the form of constant legal harassment (with ensuing costs), unfounded allegations as well as obstructionism and matters of access to her child. I have been impressed by her resilience in dealing with the situation. Her conversations about the welfare of her child are in keeping with her being a responsible and thoughtful parent.”
The Dr B 2016 Report
On 7 April 2016 Dr B prepared another report (and I will refer to the Mother, the Father and the child although Dr B referred to them by name). The child was now aged nine years. By this time the child had been living with his Father since 2009. He had been living in approximately equal time arrangement with his parents from 2009 but solely in the care of his Father since 2012 and since that time the Mother had been ordered to have limited supervised time with the child.
In this report Dr B described the Mother's account that the Father had been admitted to the T Hospital psychiatric ward (and I infer when he had not been). He questioned her about that account. He opined that,
Throughout this interchange, (the Mother) impressed as someone who is prepared to manipulate and massage the truth, with some flair and absence of discomfort or distress.
It was not clear to Dr B on what basis Dr S had formed the opinion that the matters the mother was commenting on were factual rather than delusional. Dr B opined:
Throughout her assessment, the mother'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 the father and remained consistent throughout the assessment…. It was her general view that she was not unwell psychiatrically at the present time and was more than capable of managing her relationship with (the child).
At [78] of the 15 August 2016 reasons his Honour recited the Mother's evidence when being cross examined by counsel for the Independent Children’s Lawyer when the Mother said, among other things that:
[78]…when I'm looking for psychiatrists, you look for the ones that are experts… Dr S specialises in bipolar… when I left the hospital… that was the referral for that condition, but I don't think we've talked about the delusional side of things with Dr S…
At [79] of the 15 August 2016 reasons, his Honour said:
[79]I should also commented this stage the Dr S's evidence must be seen in light of her role in only treating the mother's bipolar disorder, and it was Dr B's assessment, which I accept, that the mother and Dr S had a relationship in the style of a 'folie à deux'.
The recent history at the time of Dr B's 2016 report had been that the mother had had little contact with the child from February through to September 2015 but had seen the child supervised by a contact service from September 2015 to March 2016.
The Mother described her applications to the court as, “There's a few” and that for her litigation was "a full time gig". The recent history of applications cited by Dr B was then:
•Application in a case filed 31 August 2015
•Application for review filed 2 September 2015
•Application a case filed 7 September 2015
•Application in a case filed 26 October 2015
•Contravention application filed 26 October 2015.
The Mother confirmed to Dr B that she "absolutely", adamantly and without qualification believed the following allegations about the Father were true:
(a)that he wished to consume the child'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 U 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 the father entertained gay males naked;
(g)that he was under investigation for insurance fraud and processing and circulating child pornography;
(h)that he followed nasty traditions;
(i)that he hired a security guard to protect the child.
In addition at that time the Mother told Dr B that the child had been subjected to trauma and was being alienated from her by the Father but she provided little indication that she understood her illness may also have had a traumatic effect on the child.
In summary Dr B opined that despite psychiatric treatment the Mother continued to maintain a campaign against the Father and that she was obsessive in her behaviour towards the Father and people connected with him. He opined that,
She was at all times a persuasive presence who provided her account in the absence of distress, doubt, guilt or concern… Dr S's bold statement to the effect that she was convinced that the incidents alleged by the Mother of the father persecuting her were based in fact rather than delusional are a testimony to the mother's ability to convert those around her to her cause."
Dr B's conclusion included the following matters;
(1)The Mothers position in regard to the father is trenchant and essentially remains the same as when I first assessed her in 2008… The Mother is nonetheless disturbed and continues to harbour a paranoid view of the Father…
(2)The Mother's allegations are as bizarre as they are numerous and essentially contained a series of misrepresentations of comments and/or behaviours which have been taken out of context by her to use against the Father… The Mother demonstrates little in the way of insight as to the unfounded nature of her allegations….
(3)The Mother's psychiatric treatment has not impacted on her core set of beliefs in regard to the father, 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 the Mother is the harm all this is doing to the child, demonstrated by her gleeful pursuit of the Father through the courts without any insight or understanding as to the deeper origins of her disturbance and behaviour. As such, in my opinion the mother continues to be a risk to the child's health…
On 15 April 2016, about a week after Dr B's 2016 report, the Mother filed an amended application seeking among other things the following orders:
(a)that the Mother have sole parental responsibility for the child
(b)that the child live with the Mother; and
(c)the child spend time with the Father for two hours per month (supervised) with the father to pay for supervision.
The matter returned before Judge Curtain on 18, 19, 20 and 21 April 2016 (about two weeks after the release of Dr B's 2016 report). The Mother appeared in person and the Father and Independent Children’s Lawyer were represented by counsel.
The Court ultimately accepted Dr B's opinions. After the four day hearing judgement was reserved but it was ordered by consent on the last day, the 21 April 2016, as follows:
2.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 (the Mother) may not, without leave of the court having jurisdiction under this Act, institute any proceeding under the Act against the respondent father (the Father).
Reasons of the Trial Judge
The last written submissions were delivered on 9 June 2016 and Judge Curtain determined the matter and deliver detailed reasons and final orders on 15 August 2016. To anyone wondering why the court has not ordered any time to be spent between the Mother and the child (other than the supervised time on conditions set out in the 15 August 2016 reasons) those detailed 15 August 2016 reasons over 53 pages and 83 paragraphs would be instructive reading.
In considering the child's best interests his Honour considered the provisions of section 60CC(3) of the Act and observed at [61]:
[61]It follows from the evidence of Dr B 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 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
At [64] His Honour observed;
[64]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.
As to the day of the big chase His Honour observed at [65]:
[65]It is clear that the events of 12 February 2015 seriously impacted on the emotional well-being 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…
At [81] his Honour recited the Independent Children's Lawyer's final submission:
[81]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 would you such time to gain knowledge of the father and his household.
However the Court rejected the no time whatsoever submission of the Father and at [82], observed inter alia:
(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 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;
(h)since the events of 12 February 2015… There have been a number of supervised contact periods between X and his mother. These are described in a report… and indicates that, whilst the child was described as being a little nervous, anxious and quiet on occasions, there were periods when he appeared to enjoy the experience…
The basis of the Court's orders of 15 August 2016 for the supervised time to occur only when the "independent psychiatrist" (not a treating psychiatrist) is satisfied that the Mother's treatment has been effective enough to ensure the Mother is not a real or potential risk to the emotional and psychological well-being of the child is readily apparent from the evidence recited above.
Mother’s treatment after 15 August 2016 order
Based upon what the mother told Dr B (on or about 17 October 2018) it appears that the mother consulted Dr V for the first time in March 2017 and on or about 27 July 2017 Dr V advised the Mother that he would be supporting her reconnection with her son but such reconnection was objected to by the Father.
From Dr B's third report, being dated 22 October 2018, it is clear that in her report of 6 February 2018 Dr D (the treating psychologist) noted that the Mother had three hospitalisations in 2017, one of which was solely to manage significant medication side effects. In that report Dr D was silent on the reason for the other two admissions and considered that the Mother’s illness usually responds well to treatment with symptom-remission and good inter-episode function.
DR W AND WHY DR B MADE A THIRD REPORT
Two years after the orders that followed the 4 day hearing, on 25 July 2018 the matter again came before Judge Curtain. I infer that Judge Curtain would have been familiar with the history of this matter and I again note that he was the judge that made the section 102QB order on 15 August 2016. On that day Mr Khan appeared as amicus curiae and Ms Wild of counsel appeared on behalf the Father. The purpose of the hearing was for the cross examination of Dr W, a psychiatrist, who had prepared a report on in June 2018 and on 11 July 2018 concerning the mother's health. Dr W had been provided with the final orders of 15 August 2016.
Significantly Dr W had observed in his 11 July 2018 report,
My understanding is that Ms Harding was directed to see "an independent psychiatrist", who would treat her as well is providing reports to Mr Watson and the court. As a treating psychiatrist, this position is untenable as the dual role potentially has insurmountable conflicts.
The transcript of 25 July 2018 at page 3 shows the following passage of evidence:
Dr W, do you consider that you're in a position to fulfil the requirements of an independent psychiatrist in these proceedings? In terms of providing a treating doctor's report, which I have done, I believe, I've done that to the best of my ability. But in regards to being an independent forensic psychiatrist, I wouldn't consider myself to be one, no.
…
In your report of 11 July 2018, you stated: I reiterate that I am not in the position to make comment on the psychological impact on X should he have contact with Ms Harding this is beyond the scope of my expertise? That's correct.
I also note, in your earlier report, of June, you stated: I can make no comment in regard to Ms Harding's ability to parent, or the impact of her seeing her son on his psychological well-being. This would be outside of my area of expertise? That's correct
…
Lastly, Dr W, are you aware that- well, I will advise you that it is my clients (the Father's) proposal that Ms Harding attend upon Dr B. Now I understand that you're aware that Dr B has played a long-standing role in these proceedings; is that right? I have had access to his reports, yes.
That's right. Now, Dr W, do you have any comment to make in relation to that proposal? Well from reading Dr B's report-and clearly he has no role in providing treatment to Ms Harding- I think that would be an appropriate step to take in terms of providing an updated and hopefully impartial report.
Dr W was asked questions by Mr Khan. The transcript shows the following passage of evidence:
Can you confirm how you were appointed by Ms Harding? Yes, my understanding is that Ms Harding contacted the Y Clinic seeking a psychiatrist as per his honour's initial orders. It did-I must admit, it was a slightly unusual request, and I did try to clarify what my role would be with Ms Harding, because, from experience, it is difficult for a treating psychiatrist to also play the dual agent role of providing independent expert reports to the court. I did contact, I think, the solicitor for the father just to clarify that role, and then agreed to see Ms Harding. But prior to that, I had no treating role with Ms Harding, prior to April of this year.
Thank you, doctor. Apart from your role as a treating psychiatrist for Ms Harding, do you consider yourself independent? I think, once you start to treat someone, that-your duty as a treating psychiatrist, or a treating medical practitioner, is to the person you are treating, in terms of ensuring that you look after their best interest: and that, at times, I think, places a practitioner in a difficult position, especially if they are asked to potentially breach confidentiality. So, even though the reports I have provided to the courts, I have followed the general rule of being as open and as honest as possible, I think, in terms of my duty, it really does remain with Ms Harding.
Following that evidence the transcript indicates that his Honour made the following observations which I regard as reasons for his orders that followed;
Right. Look, in the circumstances of that evidence, I think it's clear that this gentleman (Dr W) is mainly a treating doctor, who tried to be as independent as he could, but it would be hard to describe him as being wholly independent. In the other aspect of the evidence I've heard is that he felt that Dr B, at this stage, providing a report-to use his words-would be an appropriate step. In those circumstances, I accept the advice of that expert, and I think that it is an appropriate step… And I want him to be able to provide a report in December… I don't want to delay it further… But that evidence (of Dr W), in my view, is overwhelming for Dr B to do another report. Notwithstanding the delays and frustrations to the mother…
His Honour then ordered as follows;
1. I will urgently appoint an ICL (independent children's lawyer).
2. I request from the ICL's funding that they pay for this report from Dr B.
3.The mother attend upon Dr B on 27 November 2018 for the purpose of an updated report in relation to the issues detailed in my earlier order (the 15 August 2016 orders).
4. All parties' costs (of today) are reserved.
After those orders were made counsel submitted:
Dr B will be providing a report on by 10 December. If I could just make a note of the fact that there is a possibility that this child may have supervised contact with Ms Harding in December, so that the husband would be unwise to make holiday plans to make the child unavailable during that time.
His Honour responded and made the observation;
The father is on notice that the order for supervised time with her is still in place, and if Dr B is confident that that is worth trying, then I will certainly look at it…
The matter, including the Mother's application of 7 November 2016, was adjourned to 10 December 2018.
The evidence of Dr W on 25 July 2018 demonstrates the difficulty for the mother in finding not one but two psychiatrists, a treating psychiatrist and an "independent" psychiatrist, who might also be described pursuant to the scheme of the 15 August 2016 orders as an independent supervising psychiatrist.
His Honour, recognising that difficulty and taking account of the evidence of Dr W ordered a further report from Dr B. His Honour did not order, or impose upon the parties, Dr B to undertake a report as the independent psychologist contemplated by paragraphs [5-7] of the orders of 15 August 2016. Rather in the difficult circumstances that Dr W was placed in, he ordered what may be described as an orthodox expert report from an expert who had already been involved in the proceedings.
On 31 July 2018, that is pending the adjourned hearing and the third assessment by Dr B, the Mother filed another Application in a Case.
Dr B 2018 Report
The Mother attended upon Dr B for assessment on 17 October 2018 and the psychiatrist provided a detailed report dated 22 October 2018 (but provided it to the Independent Children’s Lawyer), and not the parties, on 29 November 2018). In light of the orders later made 10 December 2018, I will limit references to that report. Dr B records that the Mother told him that she had been attending upon her consultant psychiatrist Dr D for ongoing psychiatric treatment and management of her medication. Dr B records that the Mother told him that when she was being treated by Dr W that Dr W was not aware of her being in the psychiatric hospital and that, "I feel bad, I lied about it (coming off medication)". Hence it appears that at some time the mother had attended upon Dr W and Dr D for treatment. Among other observations Dr B observed that:
There was a conveyed sense of recent decompensation in her mental state with the development of an acute psychotic episode in keeping with the diagnosis of schizoaffective illness due to her non-compliance with treatment despite history of intense psychiatric treatment. Whilst there were no frank psychotic symptoms at the time of this assessment, (the Mother) impressed as vulnerable, describing herself as exhausted and a "train wreck" with glimpses of grief in respect of her lack of contact with X. It is also apparent that her views of Mr Watson……. , have not changed, and she continues to experience him as having abused X, expressing a heightened concern about his safety when in his father's care, which is most worrying, considering the significant, prolonged and intense psychiatric treatment she has undergone.
Under the heading of 'Opinion' Dr B concluded as follows:
1.(The Mother) continues to describe symptoms of chronic Schizoaffective Illness.
2.(The Mother) detailed a recent relapse of her psychiatric condition due to her non-compliance with psychiatric treatment and at the time of the assessment with myself had been an inpatient at the T Hospital for three weeks. I consider that details of that admission would be of interest to the Court.
3.Unfortunately, despite various efforts to participate in psychiatric treatment and her involvement with the…. Clinic where she underwent treatment with Dr D, (the Mother) continues to show signs of a chronic relapsing psychiatric illness and I consider the prognosis in regard to her psychiatric condition and development of any real insight is guarded.
4.Of particular concern are her comments in regard to the father who she continues to believe has abused (the child) and is a risk to him.
5.When taking all of the above into account, it is hard to see how contact between (the Mother) and (the child) can occur in safe circumstances.
6. I consider that the release of this report needs to be carefully managed.
7. I have not seen (the child) and the report needs to be read accordingly.
The Consequence of the Dr B 2018 Report
With the benefit of that report the matter then again came before the Court on 10 December 2018 as intended by the orders of 25 July 2018. The Dr B 2018 report would have been significant to any determination of the best interests of the child. It appears that the 2018 Dr B report was not provided to the Mother. She was represented by counsel that day. On 10 December 2018 Orders were made that the two then extant applications of the Mother be dismissed and it was further ordered and noted as follows:
3.The independent children's lawyer have liberty to provide a copy of Dr B's psychiatric assessment of the Mother dated 22 October 2018 to Dr W, the mother's treating psychiatrist, the mother's general practitioner Dr L and Dr D.
AND THE COURT NOTES THAT:
A.The independent children's lawyer will request that Dr W, the mother's treating psychiatrist, the mother's general practitioner Dr L and Dr D not show Dr B's report to the mother.
(emphasis added)
However the extant orders for limited supervised time subject to the conditions of paragraphs [5-7] of 15 August 2016 were not discharged.
2019 APPLICATIONS AND EVIDENCE
As described at the outset of these reasons, on 18 June 2019 (some eight months after last at court) the Mother filed an Application in a Case "seeking special permission… to make an application to vary the final orders made 15 August 2016". That application was listed in Court on 23 September 2019.
In support of that application the Mother filed a number of affidavits. The affidavit affirmed by her on 18 June 2019 asserted a number of matters including;
[2]…Dr V was appointed as the independent psychiatrist (pursuant to the… orders) but that the fathers lawyer…contacted Dr V’s consulting rooms and raised the argument that he was not independent as he was treating me? The father refused to comply with order 7b…
[3]In March 2018… Dr W was appointed as the independent psychiatrist… In July 2018 the father again rejected Dr W as the independent psychiatrist… The father nominated Dr B as the independent psychiatrist… Dr B had assessed the mother twice in 2008 and once in 2016 and was clearly no independent…
[4]In October 2018 I was suffering from Post-Traumatic Stre(ss) and in hospital. This pr(o)cess of litigation over 12 years has left me crushed. The ongoing emotional and psychological pursuit of the father to destroy my relationship with my son has been successful. I have not seen or had any communication with my son since 6 March 2016… I…questioned Dr Bs ability to be independent? Dr B denied assessing me in the past and accussed me of "taping" him on my mobile phone. I attended the federal circuit court 10 December 2018 ….I was unable to proceed with my application as 12 years of humiliation had taken its toll and (I) was not able to proceed.
[5]…The mother is seeking a shared care arrangement that would be week about….
The Mother alleged that a few days after filing this affidavit, on 9 July 2019, she (again) encountered the child and the Father in L Street, Suburb O.
The Mother filed another affidavit on 12 July 2019 and the assertions of that affidavit included:
[1]….My updated application is for sole parental responsibility. This matter is listed 23 September 2019. Can this application be abridged as I have grave fears for my son's safety under the care of the father.
[3]I am still experiencing emotional, psychological, alienation and financial abuse by the father…and his lawyers…of 12 years. The father in 2014 threatened to cut my throat in front of our son and has gone on to have me listed as the psychological threat and vexatious applicant. The father has an acquired brain injury, epilepsy and Depression……The emotional, psychological and financial trauma at the forefront of the father has left me crushed.
[4]….(I)n the county court in 2009…He was awarded $52,000 after I was worn down and threatened to lose more if I didn't give him this money. I had to sell my home for $800,000 to cover the litigation costs and this debt to the father. I received a cheque for $300 after my equity of $500,000 was consumed by litigation…..The father has an insurance policy of $300,000 as income protection a year, as he had radical brain surgery to correct his epilepsy which left him with an ABI in 2003.
[5]Tuesday 9 July 2019….I witnessed my son X who is now 12 and his father walking towards me on L Street in Suburb O. (the father) pushed X away from me and into a shop not allowing me to engage X. I have had no communication or contact with my son since 6 March 2016. I fear X is suffering under the care of his father, physically, emotionally and psychologically (bolding as in the affidavit). My son is suffering, he told me when he was 6…
[6]I am also seeking damages from the father after 12 years of destroying my ability to be a person…
On 15 July 2019 the Mother filed another Application in a Case in the same terms as the one filed 18 June 2019 and this was listed for 23 September 2019.
On 16 July 2019 the Mother filed a document known as a Notice of Risk and under the heading Particulars of alleged abuse to a child, the Mother alleged many matters and events going back to 2007 including;
[1]The emotional, physical, psychological, alienation, sexual and financial abuse my son and the mother has endured for 12 years under the care of his father…
Also on 16 July 2019 the Mother filed an affidavit and deposed to allegations said to support the allegations recited in the Notice of Risk.
Familiar themes in 2019 affidavits
The themes of this affidavit and Notice of Risk are similar to the themes of the Mother's concerns expressed in the 2008 Dr B report, the 2016 Dr B report, the 15 August 2016 reasons and the 2018 Dr B report. The consequences of the continual agitation of those themes are significant for any application the Mother may bring and for the consideration of supervised time.
On 19 September 2019 the Mother filed four affidavits from persons and professionals who had dealt with her.
One of the filed on 19 September 2019 affidavits was from Dr D, the same psychiatrist who had written the 6 February 2018 report. Dr D deposed to being the Mother’s treating Psychiatrist from 6 June 2016 to the date of the affidavit of 6 September 2019.
Dr D deposed, inter alia:
7. What is Ms Harding's diagnosis and prognosis?
… Her diagnosis is Schizoaffective Disorder. In addition to mood symptoms, at times Ms Harding has had quite prominent psychotic symptoms. At times Ms Harding has had delusional beliefs regarding her ex-husband and others. It has been noted that Ms Harding's illness usually responds well to treatment, demonstrated by symptom remission and good into episode function. The nature of schizoaffective disorder is that individuals can have repeated episodes of relapse, then remission of symptoms with treatment. This has been the pattern of Ms Harding's illness.
… On this basis, I consider that Ms Harding's prognosis is good so long as Ms Harding remains in treatment.
8.Is there any medical reason why Ms Harding should not have contact with her child?
This is a difficult question to answer as it has not been made clear to me why the court has previously determined that Ms Harding should not have contact with her child. In addition, I have never seen Ms Harding with her child so I have no personal experience of her interactions with him.
In general, women, such as Ms Harding, with a diagnosis of schizoaffective disorder, who are adherent with treatment and experience symptom remission, are capable of parenting their children. Parents may need varying degrees of support. Some mothers require no outside support.
… In addition, although I am not in a position where I can make an informed comment on Ms Harding's capacity to independently care for her child, I have not observed any issue in relation to Ms Harding that would indicate that supervised contact with her child would be unreasonable, to allow for a more formal assessment of her parenting skills.
(emphasis added)
The affidavit of Dr D does not address, and does not purport to address, the matters described in paragraphs [5-7] of the 15 August 2021 nor does Dr D purport to be the independent psychiatrist appointed by the Mother pursuant to the those orders. The Mother has not deposed that she is.
The issues raised in the 2008 Dr B report, the 2016 Dr B report, the 15 August 2016 reasons and the 2018 Dr B report on the one hand and Dr D's report of 2019 are like ships passing in the night. They do not engage. This circumstance caused me to wonder whether Dr D had ever been provided with the 2018 Dr B report by the Independent Children’s Lawyer as provided in the 10 December 2018 orders.
The further information provided pursuant to my order of 19 Nov 2020 (marked A of 10 Dec 2020) shows that she was so provided.
The extant orders of 15 August 2016, adopting as they do at [10] the vexatious litigant order of 21 April 2016, remain in force.
2019 APPLICATIONS DISMISSED
The Application in a Case of June 2019 and July 2019 and the affidavits of in support of those applications do not comply with section 102Q of the Act. In any event they were not pressed by the Mother's counsel, and I infer abandoned, and were overtaken or made obsolete by the "clarification" issue and the affidavit (which described orders sought) of 6 October 2020. I will dismiss the two 2019 Applications in a Case for those reasons.
FURTHER WRITTEN SUBMISSIONS
Before delivering orders and these reasons the Full Court in Vissell & Vissell [2021] FamCAFC 76, 18 May 2021 (‘Vissell & Vissell’), at [37] applied the Full Court decision of Colburn & Cleese (2020) ¶FLC 93-995, 16 November 2020 (‘Colburn & Cleese’) and restated the law concerning hypothetical or advisory opinions. I had not been addressed on whether the orders or declaration the Mother sought were hypothetical or advisory orders.
Also before delivering orders and these reasons the Full Court in Oberlin & Infield [2021] FamCAFC 66, 7 May 2012 (Oberlin & Infield) at [41-42] addressed the potential conflict between an attempt to order pursuant section 64B(2)(g) of the Act (steps to be taken before an application can be made) and "improperly reposing judicial power in the psychiatrist".
I referred the parties' lawyers to those authorities and paragraphs and asked for any submissions concerning them, to be made by short written submission of the Mother to be filed and served within 14 days (and if that was insufficient time to advise why and what would be the proper time for such submissions) and responded to by the Father, if he so chose, within a further 14 days.
Vissell & Vissell
At [37] of Vissell& Vissell the Full Court observed:
[37]Courts should not make a determination that does not give “a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy” nor should a court give hypothetical or advisory opinions.
Colburn & Cleese
In Colburn & Cleese at [40-46] the Full Court observed as follows:
40.Courts should not make a determination that does not give “a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy” (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (“Bass”) at [45]). Thus, a court should not give hypothetical or advisory opinions (Bass at [47]).
41.In Bass, the questions “were asked by reference to ‘the matters pleaded in the amended Statement[s] of Claim and the material contained in the agreed bundle of documents’” (Bass at [43]). The Full Court of the Federal Court of Australia, from which the appeal was taken, noted that there was no agreed statement of facts and that no findings of fact had been made (Bass at [43]).
42. The High Court in Bass explained:
49.As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state – let alone answer – preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
43.The importance of a firm factual foundation for declarations was emphasised by the Queensland Court of Appeal in Multiplex Ltd v Qantas Airways Ltd [2006] QCA 337. Keane JA (as his Honour then was) said, with the approval of McMurdo P and Mullins J:
26.…Where a court determines and declares the rights of parties to a dispute, it either establishes the facts itself or acts upon the footing that the facts necessary for the determination of the parties’ rights are established; otherwise the court
is not determining the parties’ rights but is merely providing legal advice. That is not the court’s function…
44.The difficulty in identifying whether a question posed for the Court to answer is hypothetical was identified by Edelman J in Re Barrow (2017) 349 ALR 574. His Honour said:
10.… The boundaries of what is a purely advisory opinion, such that the question would not fall within a justiciable matter, may require a degree of evaluative judgment, and may not be susceptible to an all-encompassing definition. However, an advisory opinion which is generally beyond federal jurisdiction can be described as being one which is “not based on a concrete situation” and one which “does not amount to a binding decision raising a res judicata between the parties”…
(Footnotes omitted)
The Mother filed submissions on 15 June 2021. As to the “hypothetical or advisory opinions” issue the Mother submitted that the Mother was aiming to quell a controversy and pointed out the difficulty the Mother asserts she has experienced in finding an “independent” psychiatrist in her attempts to comply with the orders.
In substance the Mother seeks a declaration that Dr C be or is the “independent” psychiatrist as contemplated by the final orders of 15 August 2016. Implicit in her submissions was the position that the Court could and should accept her assertions in her affidavit concerning Dr C and the difficulties she has had finding an “independent” psychiatrist and that it inevitably followed that Dr C would be the “independent psychiatrist” contemplated by orders 5, 6 & 7 of the 15 august 2016 orders.
Those submissions also go on to assert that Dr B was not the “independent psychiatrist” as asserted by the Father in oral submissions. At [9] the Mother asserts:
[9]The Mother ….has not made a variation application……The Mother seeks information from the court regarding:
a) clarification of what is required of the independent psychiatrist;
b) clarification of the steps required in the orders; and
c)confirmation from the court that Dr C qualifies as an independent psychiatrist for the purposes of complying with the orders of 15 August 2016.
The Father’s submissions were received on 29 June 2021. The Father’s submissions on this Vissell & Vissell point assert the Mother’s submissions are misconceived and asserts:
[5]This Honourable Court cannot provide the applicant with an advisory opinion as sought by her.
…
[8]…The applicant seeks to circumvent the judicial process to again appeal to this Court for assistance, such assistance being outside of the Court’s powers.
(emphasis added)
The Father asserts that the fact that Dr C’s training included supervision by the Mother’s treating psychiatrist where on 4 occasions she met or saw the Mother means could not be the “independent psychiatrist”. This is asserted to be so without ever looking at what Dr C has actually done or will do and what treatment or outcome she has reviewed or will review i.e. to rule her out in advance.
The Mother asserts that the fact that Dr C’s training included supervision by the Mother’s treating psychiatrist, where on 4 occasions she met or saw the Mother, back in 2014 is not material and that the court should confirm Dr C as the “independent psychiatrist”. This is asserted to be so without the court or the Father ever looking at what Dr C has actually done or will do and what treatment or outcome she has reviewed or will review i.e. to approve her “independence” in advance.
Hence I find that both parties seek that I prejudge that issue on scant information. I am unable to do so.
These circumstances of no agreement as to underlying facts and a factual dispute about the consequences of the agreed fact of Dr C having had an association with the mother’s treating psychiatrist and the Mother, mean that I cannot give the hypothetical or advisory opinion sought. Further to do so would be to prejudge what maybe a significant controversy. I accept that each party has, what is to each of them, good reason to each press as they do.
Assuming I had power to give the assistance or clarification or sought I cannot determine controversial matters of fact on the say so of one side or other on a hearing on the papers. If Dr C purported to follow the orders of 15 August 2016 and it was then controversial whether she was independent (as contemplated by the 16 August 2016 orders) then upon a testing of the evidence a decision could be made. On a hearing on the papers, I cannot determine in advance whether Dr C would or would not or could or could meet the requirements contemplated by the 15 August 2016 orders.
In all the circumstances I find that the Mother is seeking in substance a hypothetical or advisory opinion and that is beyond an appropriate exercise of power by the court.
Oberlin & Infield
In Oberlin & Infield at [41-42] the Full Court observed as follows:
[41]It is presently unnecessary to express concluded views on the breadth and complexity of orders which may be made in the form of parenting orders under s 64B(2)(g) of the Act because Order 20 is certainly not an order within the contemplation of that provision. Aside from the order impermissibly restraining any fresh proceedings for some two years, the conditions it then imposes as steps to be taken before any variation application is made are ill-defined and misconceived.
[42]For example: In respect of the future affidavit required of the mother’s treating psychiatrist, what does it mean that the psychiatrist must “address” the “risk issues” referred to in both the reasons for judgment and the expert evidence adduced before the primary judge? How comprehensive must the psychiatrist’s “address” be? Who decides whether it is sufficiently comprehensive? Is it expected that the psychiatrist will express an opinion about whether or not the risk of harm the mother was formerly found to pose to the children has since abated? Is it expected that the psychiatrist’s opinion would then be dispositive of the mother’s variation application? If so, how could that be correct, since it would be tantamount to improperly reposing judicial power in the psychiatrist? If not, what is the point of the order, since in any fresh proceedings the mother would be able to adduce expert evidence from her treating psychiatrist under Division 15.2 of the Federal Circuit Court Rules 2001 (Cth) and the father’s right to verify the reliability of such expert evidence must be preserved, for otherwise he would be denied procedural fairness? At the very least, the order inferentially posits that in any new litigation the mother’s treating psychiatrist would be cast as an expert witness on the ultimate issue without any discussion in the reasons for judgment of the propriety of that course.
The Father’s submissions grasped the nettle and submitted:
Unlike Oberlin paragraph 7 of the orders is not “improperly reposing judicial power in the psychiatrist”…
The submission went on to distinguish order [7] of the 15 August 2016 orders from the impugned order [20] of Oberlin & Infield asserting that the impugned order [20] of Oberlin & Infield restricted the Mother bring another application and order 7 in the 15 August 2016 orders was for a different purpose and to observe that order 7 is confined for the purposes of order 8 (which provides for the supervised time).
As to this point the Mother’s submissions content that order 7 provides for:
… The independent psychiatrist’s opinion is expert assessment by a professional with specialised skill or knowledge and the court recognised this expertise in the orders of 15 August 2016 at order 7…
The Mother makes a number of criticisms of the 15 August 2016 orders but does not seek to depart from or vary the 15 August 2016 orders. Implicit in the seeking of “clarification” or “confirmation” is an attempt to keep and put those existing orders to work. When the Mother’s submissions are boiled down there are but two declarations or positions advanced in substance:
(1)The Mother seeks what is in affect a declaration that Dr C is or should be the independent psychiatrist pursuant to the 15 August 2016 orders because of the difficulty is making those orders work; and
(2)Implicit in that first position is that it is not vexatious to seek such a declaration.
The Mother and the Father each seek, at this time, to maintain the orders of 15 August 2016 and it is therefore unnecessary that I consider further the principals raised in Oberlin & Infield.
VEXATIOUS OR NOT
The issue remains whether the current or revised application of the Mother seeking clarification or confirmation should be dismissed as no grant of leave to consider the issue has been made. The parties argued all issues, including the leave issue, together.
The legislation provides:
Section 102QD – Proceedings in contravention of vexatious proceedings order
(1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a)the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.
(2)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3) Without limiting subsection (2), the court may make:
(a)an order declaring proceedings are proceedings to which subsection (2) applies; and
(b)any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(4)The court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
Section 102QE - Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3) The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Section 102QF - Dismissing application for leave
(1)The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
(2)The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
(3)The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4)The court may make an order under this section in Chambers.
Section 102QG - Granting application for leave
(1)Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:
(a) order that the applicant serve:
(i)the person against whom the applicant proposes to institute the proceedings; and
(ii) any other person specified in the order;
with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and
(b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.
(2)At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.
(3)The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.
(4)The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.
The Father submitted that the Mother had brought proceedings without an affidavit in compliance with section 102QE(3) and that was mandatory. The Father had been alerted to the leave application by reference to the court portal.
None of the affidavits filed or relied upon comply with section 102QE(3). I may make an order dismissing the application if section 102QE(3) is not complied with. I must make an order dismissing an application if the proceedings are vexatious and I may only grant leave if I am satisfied that the proceedings are not vexatious.
The Dr C confirmation or clarification application is merely seeking to implement the order that both parties acknowledge applies. The difficulties complained of are, or at least may be, real. The implementation of the orders would not be strait forward and certainly not strait forward for a litigant in person who may suffer mental ill health. The two applications in a case filed in 2019 were properly abandoned soon after the Mother was represented.
The Mother’s lawyers then sought clarification of existing orders in a short hearing on submissions and the papers. I infer that the legal issues turned out to be more complex than initially comprehended by her lawyers. The Mother did not take matters into her own hands but sought the assistance of the Court as to what she found to be a conundrum.
I find that the ventilation of the “clarification” of Dr C was not vexatious in those circumstances and I so find notwithstanding that the relevant affidavit of October 2020 did not comply with section 103QU(3).
THE FOUR QUESTIONS
To answer the questions arising in the proceedings as posited at the start of these reasons I find as follows:
(1)On this occasion for the purpose of this hearing, the Mother can be heard before the Court on the Dr C “confirmation” or “clarification” issue; and notwithstanding that she has not complied with the vexatious litigant provisions of section 102QE(3) of the Act.
(2)The 2018 proceedings did not appoint Dr B as the independent psychiatrist contemplated by orders 5-8 of the 15 August 2016 orders.
(3)I am unable to give what I regard as an advisory opinion regarding whether Dr C can be or is the independent psychiatrist. Further, in a hearing on the papers on limited evidence I cannot prejudge that issue as sought by the parties.
(4)The proceedings in 2018 did not discharge the 15 August 2016 orders or limit the Mother’s ability to bring an application but she remains subject to the vexatious proceedings order.
I dismiss all extant applications.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 27 August 2021
0
5
0