HAROLDSON & HAROLDSON

FAMILY COURT OF AUSTRALIA

HAROLDSON & HAROLDSON

[2018] FamCA 681

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Risk – Parental responsibility – Best interests of the child – Where the parties each seek sole parental responsibility.

FAMILY LAW – COSTS – Orders for costs in relation to attendance of mental health professionals at trial.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DA, 69ZN, 69ZT, 117, 117(2A)

R v R (Children’s Wishes) (2002) FLC 93-108
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Telfer & Telfer (1996) FLC 92-688
Watson & Watson (2002) FLC 93-094

APPLICANT:

Mr Haroldson

RESPONDENT:

Ms Haroldson

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

905

2011

DATE DELIVERED:

6 September 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

30 - 31 July 2018, 1 - 2 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

North East Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That the father have sole parental responsibility for B born … 2005 (“the child”).
The child live with the father.
The child spend time with the mother as follows:-
(a)From the conclusion of school (or 12 pm if not a school day) Friday until the commencement of school (or 12 pm if not a school day) Monday and the same time each alternate week thereafter;
(b)For one week in each of the short end of term school holidays at such times as may be agreed between the parties but in default of agreement to occur in the first week of the school holidays with the Saturday at 10 am immediately following the conclusion of the school term to be designated as the first day.
(c)For two weeks during the long Christmas school holidays at such times as may be agreed between the parties but in default of agreement for one week from 10 am on the first Saturday and 10 am on the third Saturday in January each year.
(d)That the provisions of paragraph 3(a) are suspended during all periods of school holidays;
(e)With the mother from 3:30 pm on Christmas Eve until 3:30 pm on Christmas Day in 2018 and that same time each alternate year thereafter PROVIDED that the child shall spend time with the father from 3:30 pm on Christmas Day until 3:30 pm on Boxing Day;
(f)With the mother from 3:30 pm on Christmas Day until 3:30 pm on Boxing Day in 2019 and that same time each alternate year thereafter PROVIDED that the child shall spend time with the father from 3:30 pm on Christmas Eve until 3:30 pm on Christmas Day;
(g)For such further and other times as the parties may agree.
That handovers that do not occur at the child’s school shall occur at the father’s home at the commencement of the time that the child shall spend with the mother and shall conclude at the mother’s home at the conclusion of the time the child shall spend with the mother PROVIDED that at the father’s home the mother shall remain in her vehicle and at the mother’s home the father shall remain in his vehicle.
The parties shall keep each other informed as to their current residential address.
That communications between the parties shall occur by SMS other than in the case of an emergency in which case the parties are at liberty to telephone each other.
That the parties shall facilitate any reasonable request by the child to speak to the other parent.
That the parties be restrained and an injunction be granted restraining each of them from:-
(a)Discussing the proceedings and/or future parenting arrangements with the child or allowing any other person to do so;
(b)Denigrating the other party to or in the presence of the child or allowing any other party to do so;
(c)Denigrating any member of the other party’s family to or in the presence of the child or allowing any other party to do so;
(d)Discussing these proceedings or the allegations made in these proceedings with the child or allowing any other person to do so;
(e)Discussing with the child any criminal proceedings, allegations or police matters involving either party (both past, present and future);
(f)Approaching the other party at any school event or extra-curricular activity.
That the mother be restrained and an injunction granted restraining her from facilitating the child’s attendance on any counsellor, social worker, psychologist, psychiatrist or any other mental health practitioner SAVE AND EXCEPT with the expressed written consent of the father.
That the parties be at liberty to consult with and obtain advice from the said child’s medical or other treating practitioners.
That the parties forthwith advise the other by text message in the event of any illness or accident suffered by the said child requiring hospitalisation or any other medical treatment and permit the other parent to attend at any hospital or other facility to which the child has been admitted or treated.
That the parties be at liberty to attend at all of the child’s school functions and activities including parent/teacher nights, sports days, concerts, sports, excursions and any other activity or event to which parents are normally invited to participate and attend.
That the parties be at liberty to obtain at their sole expense in all things copies of all school letters, school reports, photographs and the like.
That each party do ensure that the child’s attendance at all extra-curricular sporting or other social activity which are required to be undertaken by her at times when the child is in his or her care.
That each party do keep the other advised of his or her residential address, mobile phone number and any changes thereto.
That the Independent Children’s Lawyer meet with the child within fourteen (14) days of the delivery of judgment to explain the operation of these orders and once that has occurred the appointment of the Independent Children’s Lawyer be discharged.
That the mother shall be responsible for the cost of attendance at trial of Dr L and Dr M.
That the Independent Children’s Lawyer shall be responsible for the cost of attendance at trial of Dr D.
That all extant applications be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haroldson & Haroldson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 905 of 2011

Mr Haroldson

Applicant

And

Ms Haroldson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The proceedings between Mr Haroldson (“the father”) and Ms Haroldson (“the mother”) relate to the future parenting arrangements for B born in 2005 (“the child”).
The proceedings commenced in 2011 and were resolved by consent orders made 6 February 2012. The parties complied with the orders without difficulty until an incident in April 2014 following which the father recommenced the proceedings.
By his Amended Initiating Application filed 13 June 2018 the father seeks final orders that he have sole parental responsibility for the child, that the child shall live with him and spend time with the mother on each alternate weekend “as determined appropriate by this Honourable Court”.
The mother’s Amended Response filed 27 July 2018 sought orders that she have sole parental responsibility for the child, that the child live with her and spend each alternate weekend from the commencement of school on Friday to the commencement of school on Monday, from the conclusion of school on Wednesday to the commencement of school on the following morning in the intervening weekend and for one week in each school holiday period providing the father is on annual leave.
In the alternative, the mother seeks that the child spend equal time with each of the parties on a week about basis commencing from the start of school on Monday and concluding at the start of school on the following Monday.
The mother sought to introduce financial issues in the absence of any current proceedings. The current operative orders are those made 21 December 2017 which provided for the previous parenting orders to be suspended and that the child live with the father and spend time with the mother each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday.
Handovers that did not take place at the child’s school were to occur at the father’s home, but on the basis that the parties did not come into contact.
The mother was restrained from engaging social media that involves or refers to the parties, the child or the litigation.
The Independent Children’s Lawyer (“ICL”) generally supports the father’s parenting proposal, but importantly seeks that it be a condition of the mother’s time with the child that until 31 December 2020 she shall:-
(a)Continue to engage with a medical health practitioner to address those issues identified by [the family consultant’s] reports and the diagnosis by Dr D, Psychiatrist, to the effect that the mother has borderline personality disorder;
(b)Comply with all recommendations for appointments, therapy and/or medication as recommended.
In order to assist with the purported need for the mother’s further engagement with her health practitioner or treating psychologist, the ICL seeks that leave is given for the following to be made available:-
(a)A copy of the order;
(b)A copy of the family reports dated 6 May 2015 and 2 July 2018;
(c)The reports of Dr D dated 23 September 2014, 4 January 2017 and 31 January 2017;
(d)A copy of the Reasons of the verdict in the criminal case; and
(e)A copy of this judgment.
The ICL sought that the mother be restrained from facilitating the child’s attendance on any counsellor, social worker, psychologist, psychiatrist or other mental health practitioner save and except in an emergency or with the express written consent of the father. The mother was not prepared to consent to such an order.
Agreement was reached in relation to a number of orders proposed by the ICL which regulated the interaction between the parties and the child and provided the mechanism by which the parties were able to be kept informed as to significant events that might affect the child and in particular their separate interaction with the child’s school and extra-curricular activities.
The trial commenced before me on 30 July 2018. The father and the ICL were represented by counsel. The mother appeared as a self-represented litigant.
The mother has had difficulty in securing and retaining legal representation. Counsel represented the mother on 16 February 2018 when the matter was listed for trial and trial direction orders were made.
On 9 July 2018 further extensions of time were granted to the mother to file her Amended Response and Affidavits of evidence in chief noting the following:-
[T]hat the trial remains listed as a primary hearing to commence 30 July 2018 and that the respondent mother acknowledges that she will either have legal representation at trial but if not she is prepared to conduct the proceedings as a self-represented litigant.
At the commencement of the hearing the mother made application for the appointment of a McKenzie friend. The mother was advised that a “McKenzie friend” is not a litigation or case guardian but by reference to the summary provided at [18] by Lindenmayer J in Watson & Watson (2002) FLC 93-094, a “McKenzie friend” is:-
… a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a “McKenzie friend” is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. …
The mother proposed that her McKenzie Friend be her current partner Mr N who was also proposed to be a witness upon whom the mother relies.
In those circumstances I did not consider it was appropriate for Mr N to be a McKenzie friend and a witness in the proceedings and accordingly, her application was refused.
As a preliminary matter I canvassed with counsel and the mother their attitude to the application of s 69ZT of the Family Law Act 1975 (Cth) (“the Act”). There was no dissent to the proposition that the provisions of s 69ZT should apply. There was no suggestion by the parties that the other represented an unacceptable risk to the child and as such, the provisions of the Evidence Act 1995 (Cth) should apply.
The ICL adopted a different attitude given her position that the mother’s time with the child should be conditional upon her continuing with ongoing therapy on the basis of an alleged diagnosis by the mother’s former psychiatrist that she may suffer from a borderline personality disorder.
At the commencement of the proceedings I had regard to the provisions of s 69ZN and in particular the relevant principles that are to be applied. The mother was reminded that she had previously been provided with a copy of the decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072. The mother was also given assistance in relation to the procedural aspects of the litigation.
By reference to her trial affidavit material and the detailed amended response I was satisfied that the Court would have sufficient evidence to properly assess the competing proposals of the parties in order to determine what orders would be in the child’s best interests.

MATERIALS RELIED UPON

The father relies upon the following:-
(a)Amended Initiating Application filed 13 June 2018;
(b)Affidavit of the father filed 13 June 2018;
(c)Affidavit of Ms C (the father’s partner) filed 14 June 2018.
The mother relies upon the following:-
(a)Amended Response filed 27 July 2018;
(b)Affidavit of mother filed 26 July 2018;
(c)Affidavit of Mr N (the mother’s partner) filed 25 July 2018;
(d)Affidavit of Ms O (subject to objections tendered by consent) filed 25 July 2018;
(e)Affidavit of Mr P (subject to objections) filed 25 July 2018.
The ICL relies upon the following:-
(a)The family reports prepared by Ms Q dated 6 May 2015 and 2 July 2018;
(b)The psychiatric reports of Dr D dated 23 September 2014, 4 January and 31 January 2017; and
(c)Report of Dr L, psychologist, dated 22 September 2017.
Leave was given to counsel and the mother to cross examine the witnesses called on behalf of the ICL.

BACKGROUND

The father was born in 1976 and the mother in 1981. The parties were in a relationship from 1998 until 2010. They were married in 2003. The subject child is the only child of the relationship. She will be 13 years of age in late 2018.
The parties have each re-partnered. The father lives with Ms C and their two children aged five and seven years. The father is employed fulltime as a tradesman, his partner is employed part-time.
The mother resides with Mr N. She undertakes part-time tertiary study leading to a Bachelor degree. Her partner is employed fulltime. The child is in her final year of primary school and the parties remain in dispute as to the choice of high school for the 2019 academic year.
It appears that the child has a good social network and is engaged in extra-curricular activities.
The litigation between the parties has been ongoing since early 2011.
Following separation the parties reached an informal agreement that provided for the child’s time to be shared. The parties were not able to resolve their differences and the first tranche of litigation was soon commenced by the father.
The parties resolved their differences by consent orders in 2012 with the child living with each of the parties on a week about basis.
The parties managed the parenting arrangements until 7 April 2014 when the father discovered that the child had been in the care of her uncle and not the mother during the previous week.
The father, in answer to his enquiries as to the whereabouts of the mother, was told she was in hospital undergoing treatment for a back injury.
It was subsequently revealed that she was on remand and had been charged with a criminal offence. The child then came into the father’s care and her time with her mother was subject to restriction and supervision until the current interim orders.
The father had concerns as to the mother’s mental health and he alleges that she presented as suicidal in June 2016 and had communicated her suicidal ideation to the child.
The mother alleges that there has been a long history of controlling and abusive behaviour by the father. The father denies that he was the perpetrator of family violence and in particular refutes the mother’s recent allegation that the father has engaged in stalking behaviour.
The gravamen of the mother’s allegations pre-date the previous consent final orders.
The relationship between the parties remains poor. Their ability to communicate is severely compromised and there is evidence that supports the observation that the parties’ partners are also invested in the conflict and lack a level of objectivity.

MOTHER’S CRIMINAL CHARGE

The mother was charged that in 2014 and without lawful authority to do so she attempted to damage a house.
The mother pleaded not guilty and following a trial by Judge alone was found not guilty.
His Honour found that the mother was a friend of Mr R. They had been in a relationship at an earlier time.
In 2014 Mr R was in a relationship with Ms S.
On the night in question, Ms S was alone in her home and at 5 am in the morning she saw what she believed to be an intruder and called the police.
The yard was searched and the mother was found hiding behind a sheet hanging on a clothes line. She was wearing dark clothing and was in possession of implements.
The mother had borrowed her brother’s motor vehicle and had driven to Ms S’s premises. She parked the car some distance away and his Honour found that it was parked such that it was out of sight from the premises.
His Honour found beyond reasonable doubt that the mother had attended at Ms S’s premises with implements.
The mother’s case was that she was suffering from significant stress on the morning of the incident. She needed to speak to Mr R and believed that he was at Ms S’s home. Whilst there, such was her distress that she decided to commit suicide. She denied that she was jealous of the relationship that Mr R had with Ms S and did not admit that she had any intention to damage Ms S’s premises.
The mother relied upon the evidence of Dr D, an experienced psychiatrist. His evidence was that the mother was suffering from an adjustment disorder which caused the mother to become highly distressed and anxious, particularly when dealing with stressful events.
Dr D’s evidence was accepted by his Honour.
The mother’s version was not accepted. His Honour found the mother to be a poor witness and came to decision that the mother had attended at Ms S’s premises with the intention not to commit suicide but rather to cause damage to Ms S’s premises. She was motivated by unreasonable jealousy and was made more vulnerable by the consequence of her adjustment disorder.

His Honour’s assessment was that the mother had deliberately intended to damage the premises.
Ultimately the mother was acquitted not because her version was accepted, but because his Honour found that the prosecution had not satisfied the necessary standard of proof.
The relevance of the criminal proceedings to the current proceedings explains the circumstances in which the child came into the care of the father, but also raised the issue of the mother’s mental health.
The mother considers that she has significantly improved her outlook, conduct and mental health since April 2014. She has now successfully completed a significant educational milestone and is eligible to enter and complete a university course. She is in a stable relationship and she owns her own home. She has also re-established a close attachment with her daughter. Following the removal of any requirement for supervision or condition, there has been no adverse incident and the child enjoys spending time with her.
The father is still uncertain as to the stability of the mother’s mental health but is persuaded that there is no requirement for supervision or condition on the child’s time with the mother. He does not consider that she is able to take on the primary care of the child given that any additional stress may trigger an adverse mental health episode, but the age of the child and the more recent positive history of the mother’s interaction with the child and her favourable reporting of time with the mother suggests that any risk can be appropriately managed.
The ICL places a greater emphasis on the 2014 incident than does the father. The ICL considers that the 2014 incident was merely a snapshot in time of a long continuum of mental health issues that have impacted upon the mother extending from 2007 to the present.
The ICL supports the father’s proposal that the child spend time with the mother each alternate weekend from Friday afternoon to Monday morning with no extension of time during the school holidays conditional upon the mother continuing to seek therapeutic assistance concerning her coping strategies, the reduction of stressors and “concerning aspects of [the child’s] relationship with her Mother”.
The concerns of the ICL are such that if the mother does not engage with an appropriate therapist the position of the ICL may be to support orders which provide for a reduction of time rather than as promoted by the father and recommended by the family consultant.

THE EVIDENCE

The father

The father relied upon his Trial Affidavit filed 13 June 2018. The father denied that he had ever assaulted the mother on any occasion or that he had engaged in stalking behaviour.
The child appears to have a good relationship with the father’s family and recently spent a block of time with her grandmother.
She also sees the maternal grandmother and there is some attempt by the father to ensure that the child has a relationship with the maternal and paternal families.
The father denied that he had in anyway attempted to restrict the child’s access to telephone and speak to her mother. The child either has or soon will have her own mobile telephone and there is no reason that the mother and the child are not able to talk to each other. The father suggested that any reluctance to communicate with the mother was a decision made by the child without any influence from him.
The father does not seek to restrict the mother’s attendance at the child’s school or at extra-curricular activities.
The father is also unconcerned as to the activities that the child engages in at the mother’s home providing there be some attempt made by the parties to agree those activities that will cross over into each other’s time.
At present the child enjoys netball, but the father recognises that this may change.
The father’s current benign approach has not always been the case. He concedes that the mother’s name was removed from the child’s school records. A further significant issue of concern to the mother is the practice that has developed whereby the child calls Ms C “mum”.
The father’s principal concern is that the mother will not support the child in her extra-curricular activities when in her care.
The father’s evidence was tinged with a level of exasperation that he and the mother had been in litigation since 2011. He recognised that the child enjoys her time with her mother but is concerned that by reference to text messaging and direct contact the child is placed in the difficult position of having divided loyalties.
The father’s evidence was reliable.

Ms C

The father’s partner impressed as a suitable significant adult in the child’s life. Like the father, she was also litigation weary and presented as strongly supportive of the father and whilst not holding the mother in high regard, there is no evidence that she actively denigrates the mother to the child or would seek to adversely impact their relationship.

The mother

The mother relies upon her affidavit filed 26 July 2018. She gave further evidence that at the time of her arrest in April 2014 she could not contact the father given her incarceration.
She continues to see her psychologist Dr L. While Dr L was taking leave she saw Dr M on three occasions and given the father’s criticism of her in taking the child to see Dr M without notifying him of her intention to do so, she stated that it was only by chance that Dr M spoke to the child and not by design.
The mother was asked to explain the circumstances following the father learning that a mobile phone had been secreted in the child’s teddy bear on 9 June 2016.
The mother agrees that a phone was found and that it was hers. She expressed surprise at the discovery and said that the phone was taken by her daughter.
The mother said that she had two phones. The new phone went missing and she was then required to use her old phone.
The mother asked the child as to the whereabouts of the phone and at some point she admitted having taken it.
Thereafter, the mother communicated with the child via the phone notwithstanding her evidence that she was unhappy at the phone having been taken.
She denied that she had given the phone to the child so that they could secretly communicate with each other.
Exhibit “3” sets out a text message exchange between the mother and the child:-
Mother:         You’ll have to show me with all the lights on one day
Child:            Ok I will do it after school and after I have you
Mother:         Love you love you love you
Don’t get caught ok
Child:I won’t I am very careful and how long have I hade (sic) it for and I haven’t got caught.
Exhibit “4” is also a relevant exchange:-
Mother:Babe don’t forget to clean your messages OK specially Mummy’s so delete them all good. Mommy’s got them on my end ok
The text message exchange between the mother and the child leaves the Court in little doubt that the mother took active steps to provide the child with a phone so that they could communicate secretly.
Again, the issue is not that the father took steps to restrict the ability of the child to communicate with the mother, but that she was prepared to involve the child in secret communication.
The mother’s denial that she secreted the phone in the child’s toy and her assertion that the phone was taken without her permission are patently false.
The mother does not accept the findings of the criminal trial that she had an intention to cause damage to Ms S’s property.
A disturbing aspect of the incident was that the child was in the care of the mother at the time of the alleged offending. When the mother attended Ms S’s home she left the child, who was then aged 9 years, at home. I find that the mother adopted a deliberate strategy to provide the father with misinformation as to the mother’s whereabouts following her arrest.
The mother was asked to consider [99]-[100] of the family report published 2 July 2018. The family consultant referred to the mother’s mental health history and commented on her admissions to hospital in 2007, March 2014 and June 2016 with suicidal intention and ideation. Her treating psychologist noted on 15 August 2016 that the mother was “at chronic risk of suicide/self-harm due to impulsivity”. It was her opinion that the mother was resistant to seeking help.
Exhibit “5” contains a further text message exchange between the mother and the child at the time:-
Mother:You are amazing beautifully and can do any thing. I love you and will watch over you.
Baby girl I left the keys in the shoes that [Mr R] got me you know which ones they are I love you and never ever forget that you were my world you are everything to me but I’m sorry I cannot take this no more it is not fair
Child:Mummy.
Mother:It’s ok.
Child:I was scared
Mother:It’s ok I love you
You would be ok no matter what
Child:            No I won’t
Mother:         Yes you will baby don’t worry
Child:            No I won’t
I love you
Mother:         I love you to.
The mother no longer has any concern about the father’s ability to protect and care for the child. She does not consider that there are any mental, emotional or physical issues in terms of the father’s interaction with the child and according to the child she has not complained for about eight months.
The family consultant was critical of the mother’s attempt to involve the child with Dr M. The mother conceded that she had shown Dr M the family report and other Court documents.
The mother’s evidence is that she did not have any intention that the child would see Dr M but she was with the mother on one visit and according to her, without warning, Dr M asked to see the child. The mother agreed, spoke to the child who also agreed and was seen.
The mother was challenged concerning her allegation that the father was stalking her. The mother moved into her partner’s property in February 2018. Her decision to leave her property she says was in part to escape the father’s stalking behaviour and harassing conduct.
The mother has not made a recent complaint to the police and explains that she had made a complaint of assault against the father in 2010 and the police did nothing.
The mother’s evidence was unconvincing. She did not challenge the father when given an opportunity to do so and there is no evidence which would support the mother’s contention that the father has engaged in either stalking or harassing behaviour of the mother.
There was a clear focus by counsel for the ICL on the history of the mother’s mental health.
There appears to be little doubt that from time to time the mother’s mental health has been poor, but there is an absence of any evidence of psychiatric or psychological instability for at least the last two years.
The mother has seen Dr D on 19 September 2014 for the purpose of a psychiatric report with respect to the family law proceedings and on 20 December 2016 when she attended for the purposes of a medico-legal report in preparation for the upcoming criminal hearing.
The mother agreed that she has confidence in Dr D.
She intends to continue to consult with her usual psychologist Dr L on a regular monthly basis for some time into the future and thereafter on an as-needs basis.

Mr N

Mr N relies on his Affidavit of 25 July 2018. He confirms that he and the mother have been in a committed relationship since February 2017 and that they currently cohabit in his property at Suburb T. The child often stays at his home.
Mr N is in fulltime employment. He is strongly supportive of the mother and her relationship with the child. He has made only limited observations of the child’s relationship with the father but contends that the father’s body language suggests that he demonstrates hostility towards the mother and Mr N.
Mr N supports the mother’s allegation that the father has engaged in stalking or harassing behaviour. He gives evidence of an alleged incident at the child’s netball where he observed that the father sat in close proximity to the mother in circumstances where he could have sat anywhere around the netball court.
On one occasion he contends that following a court hearing he and the mother drove into a fast food outlet on U Street with the father following close behind.
There were occasions when he considered that the father had cut the mother off in his car.
He did concede that the father had never attended at the Suburb E house and accordingly the move to Suburb T was based on the mother’s history and not supported by his observations.
Mr N considers that he remains frightened of the father.
Mr N presents as an appropriate adult to assist in the care of the child. He is strongly supportive of the mother, but has adopted without question her hostility towards the father. I do not accept that the evidence given by Mr N supports the mother’s allegation that the father has stalked her and it is highly likely that he would do little to lessen the mother’s level of hostility towards the father.

Dr D

At the request of the mother’s solicitors, Dr D prepared a psychiatric report for the mother dated 23 September 2014. The purpose of the report was to assist in the interim parenting proceedings. Dr D considered the mother’s psychiatric history following separation in 2010. His involvement was relevant following the mother’s arrest on 3 April 2014. He did not find that as at the date of the report the mother was suffering from a severe mental disorder. He saw no sign of psychosis or mood disturbance and summarises her presentation and circumstances as follows:-
There are many high functioning people who use hard work as a way of coping with life stresses. It is often very adaptive. It does however, pose the question as to whether the level of symptoms that occurred after the overdose in 2007 and after her arrest in April 2014, are more severe than were reported by [the mother]. As stated above, it is not uncommon for a precautionary admission to be made which gives the medical staff an opportunity to monitor a patient for a couple of days to determine the level of symptoms severity. It would therefore be prudent of me to review her hospital records. It is possible they will reveal a level of distress greater than has been described by [the mother]. I did not get the impression that [the mother] was deliberately withholding information. Rather she may not remember the severity of her distress.
Dr D was then asked in 2016 to consider the mother’s mental health in anticipation of the criminal trial.
It was his opinion that the context of the alleged offending in 2014 was that she was overwhelmed by her circumstances and considered suicidal as a simple option. He considered that at the time of the offending she was suffering from a mental illness namely, an adjustment disorder.
Notwithstanding that assessment, it is his opinion that the mother was mentally competent to commit the crime.
Dr D was called by the ICL. After lengthy cross examination Dr D was still of the opinion that there was no impediment to the mother’s ability to parent the child. His evidence was subject to the important consideration that he had not seen the mother for some time.
Given that the mother was now in a stable relationship, had managed to retain her home and progress successfully with her university studies achieving a high distinction overall suggests that she is stable. Given that an adjustment disorder can be triggered by stressful events, in circumstances where she had not seen the child for eight months in 2017 and the ongoing litigation had not caused any psychiatric instability, the prognosis is good.

Dr M

Dr M is a clinical psychologist who saw the mother on three occasions during a period of absence by her regular psychologist Dr L. During one of those sessions the child was questioned.
The evidence of Dr M is contained in his report dated 20 July 2018.
The mother saw Dr M on 2, 6 and 20 July 2018. The purpose was to assess the mother’s parental capacity. I do not consider that the mother’s attendance on Dr M was part of her normal therapy, but was intended by the mother to enable Dr M to be called to give evidence at the trial.
Dr M was provided with a copy of the family report together with other trial documents.
Contrary to the mother’s evidence, Dr M recollected that there was a discussion with the mother about the child’s attendance and it was agreed that she would be spoken to by Dr M on 20 July 2018.
In a general sense the Court was not assisted by the evidence of Dr M. There was no circumstance where he should have spoken to the child without a better understanding as to the circumstances by which the mother had determined she should be involved.
It was also apparent to Dr M that the mother was engaged in ongoing litigation. The issues that Dr M was asked to consider were nominated by the mother because she understood they were live topics likely to be considered in the proceedings.
Whilst I place little weight on the conclusion of Dr M, his observations of the child’s interaction with the mother were positive and important. He observed that “[the child] leaned towards [the mother] for comfort, and [the mother] comforted her using hugs, words and kisses. [The child] responded to this comfort and she recommenced our conversation within a short time”. I am also prepared to accept that the child did not hold any ongoing concern that she would be left unsupervised in the home of either of her parents.

Dr L

Dr L prepared a report dated 22 September 2017 in her capacity as the mother’s treating clinical psychologist following a referral to her on 1 March 2016. The mother had been diagnosed with depression and ongoing stressors in respect of her prior relationships.
The mother saw a different psychologist for six sessions in 2016 and then undertook five sessions with Dr L from 22 May 2017 to 22 September 2017. Since Dr L’s report of 22 September 2017 the mother has continued to see Dr L on a monthly basis.
Her opinion is that the mother does not present as a risk of harm to herself or to others. In August 2017 the mother was considered to be within the normal range on the scales for depression, anxiety and stress.
In evidence, she considered that the mother was managing well and was not suffering from either Post Traumatic Stress Disorder or a borderline personality disorder.
As far as Dr L was concerned, the mother’s mental health was highly stable and she could see no adverse effect or contraindications.

Ms Q – family consultant

The family consultant recommended that the parties should share parental responsibility, but if there was a circumstance where the parties were not able to reach consensus then the decision should be made by the father. She considered the child should live with the father and spend Friday to Monday of each alternate weekend with the mother. There was no consideration given to time being extended during the school holiday period.
The family consultant recommended that the Court should consider whether the mother should engage with an alternate therapist.
The child was aged 12 years and 7 months at the date of interview. She will be 13 years of age in late 2018.
The family consultant considered the separate proposals of the parties. The mother considered that if she was unsuccessful in her application for the child to live primarily with her, then the parties should return to a shared care arrangement. The father proposed that the child spend each alternate weekend with the mother and such other times as may be agreed between the parties.
The family consultant noted the risk factors were as follows:-
·Family violence and abuse
·Mental health issues
·Risk of abuse to children.
The family consultant also identified that the child was distressed in relation to the current proceedings and there were some difficulties in respect of her relationship with her mother.
Consistent with his evidence, the father denied that he had perpetrated family violence against the mother during the course of their relationship. He denied that he had ever harassed the mother at work or had stalked her by driving past her Suburb E home. He considered that the allegation he had followed the mother in his car was fanciful and agreed that whilst he lived near the Suburb E home, he did all that he could to avoid driving past the mother’s home.

He remained concerned about the mother’s mental health and in particular his belief that the mother had discussed suicidal intention with the child. He placed significant emphasis on the text message exchange between the mother and the child and in particular the unlikely explanation for the mobile phone found in the child’s possession having been stolen from the mother. Any suggestion that the father’s neighbour had sexually assaulted the child as alleged by the mother was fantasy.
Communication with the mother was difficult and only able to be effectively undertaken by SMS text messaging.
Notwithstanding the concerns that he harboured in relation to the mother’s current presentation, the age of the child and the recent incident free history was such that there was no appreciable risk to the child by spending unsupervised time with the mother.
For her part, the mother recognised that the child was feeling under “pressure” and was aware of the litigation.
Her perception of the child’s current behaviour was reflective of divided loyalties. The child was keen to appease each of the parties.
When confronted with some aspects of the child’s interview with the family consultant, the mother considered that any lack of enthusiasm by the child to reside with the mother was not a true reflection of her wishes and perceptions but rather, was “promoted by fear of her father”.
The family consultant considered that the mother’s mental health was the focus of the proceedings. Whilst acknowledging that she did not possess the necessary expertise to consider a mental health diagnosis, the family consultant did highlight that “relational stress” appears to have impacted upon the mother’s conduct. In particular the mother’s behaviour leading to her arrest on 3 April 2014 was a clear indication that she had become fixated on her former partner and his relationship that he allegedly had with Ms S.
The concern of the family consultant was whether the mother had a capacity to deal with stress as a potential trigger to a mental health episode.
Her concern was highlighted by the somewhat florid and exaggerated list of concerns expressed by the mother in relation to the father’s parenting of the child.
The family consultant was not convinced that there existed evidence sufficient to sustain the mother’s belief that the father’s neighbour may have sexually assaulted the child. She did not form an opinion of the father from his presentation that he was likely to have been abusive to the mother.
Of greater concern to the family consultant was the child’s presentation. The father and Ms S considered that the child had “developed some resilience in relation to her mother and was able to come to her own conclusions, based on her developing moral compass”.
The child’s presentation to the family consultant was one of distress and reflected some influence by the mother of her view that the child should live primarily with her.
The family consultant observed that the child appeared strongly connected to both the mother and the father and had developed some better understanding of the mother’s more exaggerated statements.
The gravamen of the father’s proposal was that it would limit the child’s “exposure to her mother’s parenting and personal functioning issues…to a discrete period for [the child] to emotionally manage, and would further reduce [the child’s] emotional response following time (as suggested during her interview) to one morning only at school”. There is support for this reasoning by reference to the text messages and the evidence of the family consultant.

LEGAL PRINCIPLES

Principles relevant to parenting considerations

The child currently lives primarily with the father and spends limited but unsupervised time with the mother.
The father promotes that he have sole parental responsibility for the child in circumstances where he and the mother have no ability to communicate other than by SMS text messaging and that the child spend time with the mother from the conclusion of school on Friday until the commencement of school on Monday and each alternate weekend thereafter.
For her part, the mother seeks either that the child live with her or spends equal time with each of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am also mindful of the direction contained in s 60CC(2A) and in particular the concerns of the ICL and to a lesser extent the father in respect of mental health issues that may impact on the mother’s ability to appropriately parent the child.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to the additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
The parties do not support equal shared parental responsibility. The father and the mother each seek sole parental responsibility. The ICL supports the father.

PARENTING CONSIDERATIONS

Meaningful relationship

The separate proposals of the parties are based upon a clear recognition by each of them that it is important for the child to maintain a meaningful relationship with them.
The family consultant considers that the child should remain in the primary care of the father, but that it is important for her to maintain a close relationship with her mother tempered by the need to put in place orders that will reduce the child’s anxiety and divided loyalties.

Child’s wishes

The family consultant was concerned at the contrast in the child’s presentation in preparation for the current family report as distinct from the assessment conducted in 2015.
The family consultant noted the child to “shake and was intensely distressed during most aspects of the interview”.
The child was acutely aware of her mother’s attitude to Ms C and whilst not a topic of discussion, became agitated upon the realisation that the mother may well discover that she still referred to Ms C as “mum”.
The extent of the child’s distress did not enable the family consultant to explore issues relevant to the assessment namely:-
·The mobile phone issue
·Where she was to attend high school
·Her mother’s mental health
·The current proceedings.
Notwithstanding her reluctance to speak of any difficulties that arose because of the mother’s presentation, when she did not see her mother in 2017 she readily confirmed that she had missed her during this period.
She was worried about her mother and hoped that she was “okay and not angry”.
The child’s attitude towards her mother was also informed by the observed interaction. Initially the child avoided making eye contact but as the session continued the family consultant observed that the child’s body language was consistent and that she was able to maintain regular eye contact and positive interaction with the mother.
In R v R (Children’s Wishes) (2002) FLC 93-108 at [128] the Court concluded that a child’s wishes must be taken into account but that the Court is not bound by them.
The family consultant was clear in her evidence that the child felt comfortable and less anxious in the father’s care than with the mother. It is difficult to assess the weight to be attached to the child’s wishes in circumstances where the family consultant struggled to explore the topic given the child’s distress.
By inference, the child’s demonstrable ease of engagement with the father is to be seen in stark contrast to her heightened anxiety when with the mother.

Risk factors

Neither party presents as a physical risk to the child. The concern is the extent to which the evidence supports a finding of a risk of emotional or psychological harm to the child.
I do not consider that the evidence supports a finding that the mother presents with a diagnosis of mental illness which would impact upon her ability to parent the child. The mother was not invited to attend for any update psychiatric assessment and in a general sense I was not helped by the evidence of Dr D in terms of the mother’s current mental stability. Dr D did not consider that as at 2017 the mother was diagnosed with any mental illness that would adversely impact upon her ability to parent the child nor present as a safety risk.
Moreover, the evidence of Dr L was persuasive in terms of the mother’s positive engagement in therapy.
The mother has a fixed view that the father was the perpetrator of family violence and if given an opportunity to do so, the child would readily return to her primary care.
Her inability to reflect upon her own behaviour and how that has impacted upon the child, in particular the obvious distress demonstrated during the family assessment, shows a distinct lack of insight and could present a risk if the child was subjected to continued and extensive denigration of her father.
Both the father and the family consultant consider that the risk of exacerbating the child’s anxiety is managed by a determination that the child’s best interests are promoted by her remaining in her father’s primary care.
Given that the evidence of Dr L supports some level of confidence that the mother is engaged in the therapeutic process, this provides as a further safety net for the child.
It is a reasonable summary of the evidence that but for the mother’s attitude towards the father, other aspects of her life have demonstrated considerable positive development and significantly added to the mother’s ability to deal with stressors appropriately.

Parent’s ability to communicate with each other

The ability of the parents to communicate is limited to SMS text messaging. The father does not wish to engage in more direct communication with the mother. For her part, the mother remains mistrustful of the father.
The mother would seek to put in place handover arrangements that would provide a level of protection for her based upon the father being a perpetrator of family violence. Notwithstanding the trenchant view held by the mother, the evidence does not support the mother’s contention at any level.
I do not consider that there is any need for the orders to reflect or bring to account any history of alleged family violence.
The mother did not call evidence to this effect and where there is a contest between the parties, I prefer the evidence of the father.
The parties should reflect upon the negative effect on the child and the risk of entrenched anxiety being experienced by her.
Where at all possible the handover arrangements should take place to and from the child’s school, but where not possible I consider that handovers should occur to and from the parties separate homes.
The child will soon be 13 years of age. Within a relatively short period of time many of the matters which are now in contention will dissipate as the child matures and her wishes are required to be given significant weight by the parties.
There is a level of communication between the parties, but primarily the inability of the parties to negotiate with each other will of necessity require the child to assist in the communication as between the parties.
That brings into focus the need to more clearly delineate the extent to which each of the parties exercise parental responsibility. Neither party nor the ICL considers that the child’s best interests are served by an order of equal shared parental responsibility. It is likely that the position adopted reflects the experience of the parties that their mistrust of each other would not easily allow the parties to reach consensus.

The relationship of the child with each of the parties

The child is closely attached to each of the parties. She has lived in the primary care of the father from early 2014. Unsupervised time with her mother has been recently restored.
Whilst there is no evidence of the level of attachment to the current partners of each of the parties, there is nothing to suggest that they are not entirely appropriate, significant adults in her life. The practice has developed in the father’s home that allowed the child to refer to Ms C as “mum”. That is now a matter of some understandable upset to the mother and has placed the child in an invidious and difficult position.

Changes in the child’s circumstances

The father does not seek to significantly alter the current parenting arrangements. The mother’s application would see a dramatic change. The child would either be in the primary care of the mother in her home with Mr N, or at the very least her alternative position of shared care.
The child is familiar with life in her father’s home but has not experienced spending significant time in her mother’s home.
The dysfunctional relationship between the parties and the mother’s current hostility towards the father would be the very antithesis of what is required for shared care to provide a parenting environment that would be conducive to the child’s development.
The level of anxiety currently experienced by the child as observed by the family consultant cannot be ignored. The contrast between the observations of the child when with the father and the mother is stark. The father does not appear to have an agenda that promotes an adverse consideration of the mother. He is not opposed to ready and easy communication between the child and the mother. He does not seek to dissuade the mother from attending the child’s school or extra-curricular activities.
The converse is true of the mother’s approach. The child demonstrates clear anxiety in attempting to reconcile her attachment to her father with the mother’s negative view of him.
A change from the primary care of the father to the mother is likely to represent a deleterious and damaging change to the child’s circumstances. The family consultant does not consider that the child has sufficient resilience to deal with the consequences of such a dramatic alteration to the parenting arrangements.

Orders least likely to lead to further litigation

The age of the child would suggest that further litigation is less likely to take place.
Whilst the views of the child were not able to be clearly ascertained given her anxious presentation to the family consultant, as time passes the reality of the child gaining a level of maturity will give weight to the relationship that she considers she wishes to have with her parents.
The resolution to the litigation will also remove a considerable stressor that has the potential to adversely impact the mother.

Parental responsibility

The determination of parental responsibility is to be considered by reference to the factors in s 60CC. The best interests test must be applied.
As discussed, neither party seeks shared parental responsibility. Agreement is not able to be reached as to the identity of the child’s high school for 2019.
Of more concern however is the mother’s conduct in facilitating the child’s attendance upon Dr M.
I reject the mother’s evidence that the child happened to accompany her on the third session with Dr M and he considered that the child may be able to provide some valuable input.
I find that the mother arranged for the child to be the subject of interview by Dr M specifically for the purposes of the litigation with little or no focus on the provision of psychological support for the mother or to assist in the child’s anxiety.
It is likely that the mother’s actions in involving the child with Dr M heightened the child’s anxiety and distress and showed a lack of insight that in and of itself would speak against the advantages that can result from a consensus approach to parenting.
The Court has no confidence that the mother understands the mischief that arises from her conduct and given the support by the ICL, I propose to order that the father have the sole parental responsibility for the child.
The ICL also seeks an injunction restraining the mother from taking the child to any medical practitioner whatsoever save and except in an emergency or with the consent of the father. Such a proposal is supported by the evidence and has merit.

CONCLUSION

I propose to order that the father have sole parental responsibility and that the child remain in his primary care.
The evidence does not support the orders sought by the mother, either that the child live with her or that the child’s care be shared.
I am satisfied that the ICL has failed to adduce any evidence which would suggest that the child is at risk arising from mental health issues affecting the mother.
The evidence of Dr D is only of limited assistance and in any event at all relevant times he did not consider that her medical health adversely impacted upon her ability to parent the child.
The evidence of Dr M and particular Dr L is such that the Court can have confidence the mother is attending for necessary psychological support.
I do not consider that the child’s time with the mother should be conditional upon her continuing to receive therapeutic support.
The orders sought by the mother proposed that if the child lived with her, then in addition to the time spent with the father each alternate weekend, the child should spend one week of each school holiday period with the father.
There is no evidence to support the pessimism of the father and the ICL that it would not be in the interests of the child to spend extended time during school holidays. The evidence of the family consultant can be relied upon to find that if the Court considers the mother is not at risk of a relapse of mental illness and taking into account the child’s relationship with the mother, her age and the resolution of the proceedings, it is likely to be in the child’s best interests to spend extended time with the mother during school holidays so that she can enjoy extended time with each of the parties free of the restraint of school requirements.
The general suite of ancillary orders as sought by the ICL would serve to better provide for the exchange of information about the child and define the way in which the parties are to act towards each other.

COSTS

The ICL seeks an order that the mother pay the costs of and incidental to the attendance of Dr L and Dr M. The costs of Dr D are also sought on the basis that each of the parties pay one third of his costs of and incidental to his attendance.
The question of costs whether they be those of the ICL or of a party is to be considered pursuant to s 117 of the Act. The relevant provision provides that subject to the exercise of the Court’s discretion each party is to bear his or her own costs. S 117(2A) sets out the factors to which the Court shall consider in determining what order, if any, should be made.
The question of the costs of an ICL is also supported by the costs incurred, in this case potentially those of Dr L, Dr M and Dr D, are to be borne by the ICL within the finite resources of legal aid. See Telfer & Telfer (1996) FLC 92-688.

The parties are each possessed of modest financial resources. The father is in employment. The mother is a fulltime student. She does however have the support of Mr N and the evidence establishes that she owns her own home subject to a mortgage offset in part by rental income.
The attendance of Dr L and Dr M in reality falls within the clear confines of the mother’s case. It is not suggested that their evidence was not important and in circumstances where the ICL facilitated their attendance to give evidence, nonetheless they were at all times witnesses that should have been called as part of the mother’s case. The Court was assisted by their evidence and it could not be said that they were adverse to the mother’s case. Indeed, the evidence of Dr L was important in establishing that the mother continues to receive adequate psychological intervention.
The mother should be responsible for the costs of and incidental to the attendance of Dr L and Dr M.
The application of the ICL in respect of Dr D is in a different category. It was obvious from the reports of Dr D that other than his initial involvement in 2014 as evidenced by his first report, the balance of his involvement was to do with the mother’s criminal defence. Dr D had not seen the mother for a significant period of time and it was predictable that he would be able to offer only limited assistance.
It was the strong submission made on behalf of the ICL that the orders sought by the father were not appropriate in the circumstances of the case and more restrictive orders should properly reflect the child’s best interests based upon the assertion that the mother suffered from a mental illness that was likely to have an adverse impact upon her ability to parent the child. That proposition was not born out on the evidence as presented.
I consider that neither of the parties wished to call Dr D and were prepared to rely upon his reports. It was deemed important to the ICL’s case that the Court hear his evidence and accordingly there is no basis for the parties to share the costs of Dr D given the limited utility of his evidence.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 6 September 2018.

Associate: P M Malone

Date: 6 September 2018

[2018] FamCA 681

6 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs