Illingworth and Wedge
[2017] FCCA 2930
•30 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ILLINGWORTH & WEDGE | [2017] FCCA 2930 |
| Catchwords: FAMILY LAW – Parenting – application by paternal grandmother – father deceased – risk factors – mother’s health – mother primary carer. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 64B, 64C, 65DAA |
| Cases cited: Blinko & Blinko [2015] FamCAFC 146 Donnell v Dovey [2009] FMCAfam 515 N & S and the Separate Representative (1996) FLC 92-655 Napier v Hepburn (2006) 36 Fam LR 395 M v M (1988) 166 CLR 69 Russell & Close [1993] FamCA 62 |
| Applicant: | MS ILLINGWORTH |
| Respondent: | MS WEDGE |
| File Number: | BRC 2528 of 2014 |
| Judgment of: | Judge Howard |
| Hearing dates: | 21 and 22 August and 1 September 2017 |
| Date of Last Submission: | 1 September 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 30 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Beaudesert Legal |
| Counsel for the Respondent: | Mr Thiele |
| Solicitors for the Respondent: | Law Legal Practice |
| Counsel for the Independent Children’s Lawyer: | Ms Christie |
| Solicitors for the Independent Children’s Lawyer: | C M Bint Family Lawyers |
ORDERS
That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 7 December 2017.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 14 December 2017.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Illingworth & Wedge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2528 of 2014
| MS ILLINGWORTH |
Applicant
And
| MS WEDGE |
Respondent
REASONS FOR JUDGMENT
At the conclusion of the trial on 1 September 2017 the Court made it clear that, as part of the Orders that the Court would be making, there would be an Order that no time would be spent between the children and the paternal grandmother. The Court also intended to make it clear that there would be an Order that there would be no time between children and any other member of the Illingworth family. The Court also commenced providing some ex tempore reasons for judgment. The Court has reviewed and revised those draft ex tempore reasons for judgment. These written reasons for judgment provided here take precedence over any ex tempore comments made by the Court at the conclusion of the matter on 1 September 2017.
Background
The applicant is the paternal grandmother of the two subject children, X born (omitted) 2008 and Y born (omitted) 2010.
The respondent is the mother of the two children, Ms Wedge.
The children’s father was Mr A. Mr A, tragically, took his own life on (omitted) 2012. The parents of the children had separated on a final basis in about November 2011.
The two children live primarily with the mother – and have done so since their birth. The paternal grandmother has applied for a parenting order under part VII of the Family Law Act 1975 (Cth). The paternal grandmother is permitted to apply for a parenting order by reason of the provisions of section 64B and section 64C of the Family Law Act 1975 (Cth).
The parents of the two children met in around (omitted) 1996 and commenced dating in about (omitted) 1997. At that stage the mother was seventeen years of age and the father was twenty years of age.
In (omitted) 1997 the parents started living together in a rental property at (omitted). At that stage the father had commenced working for his parent’s (omitted) business and the mother was working full time at (employer omitted).
The parents were engaged on (omitted) 1998. They moved into the mother’s parent’s house to save some money in (omitted) 1999 and the mother, in fact, then returned to finish year 12 at high school. In (omitted) 1999 the mother and the father married.
The relationship between the mother and the father was characterised by family violence. The mother gave evidence during the course of the trial. I had the opportunity to observe the mother in the witness box. I have come to the conclusion that the mother was a truthful witness. The mother’s credibility is intact. I have come to the conclusion that the evidence contained in the mother’s affidavit is the truth. The violence perpetrated by the father of the children, Mr A, is outlined in the mother’s affidavit. I accept the mother’s evidence.
The paternal grandmother did not seek to try to excuse the violent behaviour of her son, Mr A. But Ms Illingworth certainly did not highlight her son’s violent nature and nor was his violent nature at the forefront of her mind.
I have come to the conclusion that the paternal grandmother’s desire to spend time with the children is an honest, understandable, loving and genuine desire. But I have also come to the conclusion that it will not be in the best interests of these boys to spend time with their paternal grandmother.
A final order was made by the Court on 16 February 2016. That final Order was made with the consent of the parties. The final Orders agreed on that date are as follows:
I.That the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) live with the Mother.
II.That the Mother have sole parental responsibility for the long-term and short-term care, welfare and development of (the) children.
III.That the Applicant be permitted to send letters, cards and gifts to the children to an address nominated by the Mother.
What remained in issue for the purposes of the final hearing (held over three days on 21 August, 22 August and 1 September 2017) was the question of whether or not the children should spend time with the paternal grandmother – and if so, in what format that should occur.
The children have one surviving parent namely, the respondent, Ms Wedge. After the final separation between the mother and the father and after the subsequent death of the father – the mother, Ms Wedge married Mr K in (omitted) 2013.
The mother and Mr K have one child together named A, born (omitted) 2015. The following persons currently live in the mother’s household:
(a)The mother;
(b)Mr K (the mother’s husband);
(c)X (subject child);
(d)Y (subject child);
(e)A; and
(f)B (Mr K’s son).
SECTION 60CA
Section 60CA of the Family Law Act 1975 (Cth) states:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC sets out how it is that a Court is to determine what is in a child’s best interests. Section 60CC states:
“SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child’s best interests
60CC(1) Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The first stated primary consideration (section 60CC(2)(a)) is – the benefit to the child of having a meaningful relationship with both of the child’s parents. These children only have one surviving parent. The children already have a meaningful relationship with their mother. For the reasons stated below, the relationship between the children and the mother may well be undermined if the paternal grandmother is permitted to spend time with the children.
The second stated primary consideration (section 60CC(2)(b)) is the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It is convenient, in having regard to the particular circumstances of this case, to have regard to sections 60CC(2)(a) and (b) together with section 60CC(3)(m). Section 60CC(3)(m) requires the Court to consider – any other fact or circumstance that the Court thinks is relevant when determining what is in a child’s best interests.
What looms large in this case is the evidence of the mother’s mental health and the need to protect the children from possible harm – namely a deterioration in the mental health of their only surviving parent and their primary carer, the mother.
Dr V's First Report
The mother initially saw Dr V on 26 November 2015. Dr V’s first report is annexed to an affidavit filed 12 February 2016. On page 6 of Dr V’s first report (the report is dated 2 February 2016) he states:
“When I enquired as to her understanding of why she had been asked to see me, she said “ever since this has come about my emotional state has been eroded… I just can’t cope with anything”.”
The mother was talking there about the Court proceedings and the applicant’s desire to obtain an Order permitting her to spend time with the children.
On page 7 of his first report Dr V states that:
“In terms of her past psychiatric history, she has never previously seen a psychiatrist. She did see a psychologist referred by her general practitioner in December 2014. From her description it appears it is mindfulness as well as exposure therapy for Court as well as cognitive behaviour therapy techniques. “I was seeing someone in April 2014 but she took maternity leave and since then I saw another person after the maternal grandfather died.” “On one occasion we just went over strategies which was mindfulness.”
She denies she has ever been diagnosed with a psychiatric condition and has never been prescribed any psychotropic medication. “I did think about going to the general practitioner last year, my husband suggested it with all the Court stuff but I was pregnant and did not want to take anything.” She has never been admitted to a psychiatric hospital and denied any previous suicide attempts or threats or episodes of deliberate self-harm.
In terms of her past medical history, she recently had planned a caesarean section and there were no complications from the birth. She does suffer from mild asthma but has never been hospitalised with this condition and there is no history of diabetes or epilepsy. She described having a concussion as a baby but she was never hospitalised with a head injury.
She is currently not prescribed any medication. She is aware she has hay fever but she is not allergic to any medications.
In terms of her drug and alcohol history, she is a non-smoker. She last used marijuana as a teenager, “I only used it occasionally”. She used amphetamines once a month for a period of six months at that time also but never injected drugs.
In terms of alcohol use she will have a glass of wine since the delivery, but did not drink at all during pregnancy. “I generally drink one or two glasses a week”. She denied any previous problems with alcohol.
In terms of her family history, she is the eldest in a sibship of four. Her father passed away from myocardial infarction this year. She is not aware of any family history of mental illness. “My maternal cousin had issues where she trashed my parent’s house” but she is not aware of the diagnosis or if it was drug related. There are no issues of suicides in the family and there are no other issues of drug or alcohol problems in her family.
With respect to her developmental history, she was born in Brisbane and was not aware of any perinatal complications. She described her childhood as good. “We always did lots of things as a family and we are still really close”. She could not recall any unhappy memories, in particular denied being the victim of any physical, emotional or sexual abuse and there was no domestic violence in her parental relationship.
“IN primary school I was one of the school captains, I was a goodie goodie”. She was outgoing and excelled academically. “I (hobby omitted) all my life up to a professional level.” Secondary school was much the same, she did well academically. “I got involved with the wrong group of people and left school three months into Year 12, my grades were starting to slip.”
She then worked as a (occupation omitted) and following that full-time at (employer omitted). She returned back to high school when she was 19 where she completed Year 12. She then completed a (course omitted) which she completed over four years. She has been working as a (occupation omitted) since then except for the maternity leave. “I did work as a (occupation omitted) at a (employer omitted) for a period but now I am back working for (employer omitted) since 2014.”
On pages 8 and 9 of Dr V’s first report he records the mother’s history of the relationship between herself and the father. A relationship characterised by violence and infidelity – on the part of the father. Dr V notes on pages 8 and 9 of his first report inter alia:
“She then commenced a relationship with the father when she was 17 and they were married when she was 19. They had been separated for six weeks at the time of the suicide “but we had been separated under one roof before that”. “Although we continued to pretend to be a couple.”
When I asked her to describe the relationship, she then said “he slept around and cheated on me since we were married”. “The first time was 12 months after we were married … it was a huge issue throughout our marriage.” “He also had it in him to be quite violent, though I did not do things to provoke it.” “He would throw things at me and smack me around, he threatened to hit me or kick me … he punched a hole in the wall above my head.” There was never any police involvement however until they separated. “I would yell and scream” but she denied ever being physically violent towards him. “I do slam doors in my current relationship.”
When I enquired as to how the relationship ended, she said “the infidelity had got to the point where I could not deal with it”. “We discussed staying in the house until Christmas and then he would leave after Christmas, but he never did.” “I think he thought it would blow over, but he became even more violent and aggressive smashing beer bottles and smashing things in the kitchen.” “He refused to come to the kindy barbecue that I was organising, and he abused me and was carrying on.” “He was sending me text messages saying he would destroy the house and not to come back.” “When the barbecue finished I went to my parents’ with the children and the next day I went to the house to collect the things I needed.” “He came home in the afternoon and then came to my parent’s and smashed my car with a baseball bat in front of the kids.” “I called the police.” “There was a DVO in place but there was continual harassment after that, not just me my whole family.” “He stole my car, he screamed out obscenities and was charged with a breach.”
“He did have contact with the children with me present but it got to the point where the police said I could not do it.” “He was also taken to a psychiatric hospital by the police and ambulance and also started to stalk my sister and mother.” “He followed my father to work and tried to run him off the road, and threw a hot coffee at my father.” “He was constantly doing burnouts in front of my parents’ house and there were constant text messages.” “He continued to have contact the week before he killed himself, the family blamed me because I stopped contact with the children.” “It was just after a man had jumped off the (omitted) with his child.”
“I was being harassed by his family prior to the death, the paternal grandmother and sister were trying to organise the assets.” “They would invite me around to sort out the division of assets, how was it their business?” “They would invite me over for dinner so the father could see the children and then they would ambush me about what I was going to do about the proceeds of sale.” “He was getting my emails from the mobile phone and he cancelled the accommodation I booked for my holiday.” “He tried to get his mother have a private investigator follow me and they never bothered to warn me.””
As to the mother’s ongoing concerns about the welfare of the children in the care of the paternal grandmother – Dr V questioned the mother about this and he notes from page 9 of his report:
“When I enquired as to what ongoing concerns she had about the welfare of the children in the car of the paternal grandmother, she said “one of the concerns is her husband, he has been convicted on two child sex offences”. “I read all the material it’s her brother and sister and the grandmother was implicated in those things.” “The grandmother was in the house and they had sex in front of her.” “Through all of this she does not accept that it happened, she just totally denied everything.” “She did not protect them from it happening as children.” “The whole family is just dysfunctional … she was sexually abused as her husband has been.” “My ex was obsessed with sex, he was charged with soliciting before we met … they have to have things their own way.” “It is like they want to punish me because they blame me for the father’s death.” “The paternal aunt and paternal grandmother fight like cats and dogs, they throw and yell .. they are always yelling at each other.”
“At the time of the family report the child said he did not feel safe with the aunt, he has memories of them smashing things.” She reports she could not see any benefit in having contact with the paternal family at all. “I can see as a grandmother why you would want to see them, but I have to put the children first … they are just nasty people.” “It’s just to have another go at us.” “They made a formal complaint against my husband, that he had lied in an affidavit that he had witnessed the father abusing me and had unlawfully accessed information about the paternal grandfather.”
When I enquired as to her understanding about when the paternal grandmother informed me the charges had been quashed, she said “the sister’s allegations they appealed it … its’ not because it didn’t happen, it’s because it was such a long period of time that the sister’s memory was hazy”. “But the brother’s allegations were not quashed on appeal, but the Judge said there was concern about the police proceedings and ordered a retrial.”
“I can’t see any benefit of the paternal aunt or paternal grandmother having contact with the children in the absences of the paternal grandfather.” “Supervision is such an unnatural environment, and I could not trust anyone else.”
“Back in 2012/2013 I offered to supervise myself but she would not have a bar of it.” “It was to be the grandmother only, but she took me to Court.” “I couldn’t even do that now because she dragged me through Court and my emotional state is not the same … I would be putting them in an environment of conflict.” “I sought professional help about how to deal with the children after the father’s death and they don’t need any more upheaval.”
Dr V noted further on page 10 of his first report:
“MENTAL STATE EXAMINATION
On mental state examination Ms Wedge was a woman of stated age. She was dressed casually and was pleasant and co-operative throughout the interview process although had an anxious demeanour. There was no psychomotor retardation or agitation and her speech was at a normal rate and volume and her mood was euthymic. Her affect was reactive but anxious but there was no evidence of any formal thought disorder or psychotic symptoms and she denied any suicidal or homicidal thoughts. There were no perceptual abnormalities and she was alert and orientated to time and place and her insight and judgement appeared reasonable.
DIAGNOSTICS (PROVISIONAL)
On cross sectional assessment I could find no evidence of a major mood disorder or psychosis. She does report significant anxiety symptoms as well as obsessive compulsive symptoms but certainly did not present with symptoms or signs of a major depressive disorder. She did appear to have some obsessional traits to her personality.
She remains concerned about the welfare of the children in the care of the paternal grandmother due to the allegations of sexual abuse by the paternal grandfather including that the paternal grandmother was a witness to this abuse and did not protect her siblings. She was also concerned about the general dysfunction of the paternal family and she does not wish to expose the children to this environment.”
It is important to note that Dr V in fact provided an opinion in relation to both the applicant paternal grandmother and the mother within his first report. As to the paternal grandmother Dr V concluded:
“With respect to the paternal grandmother, Ms Illingworth, there was nothing in the documentation that would change my view that she does not appear to suffer from a psychotic illness. There was nothing in the documentation that would change my previous assessment that the paternal grandmother suffered a major depressive episode postnatally in the context of the stillbirth of her child. It also appears that she suffered some significant anxiety symptoms in the context of stresses around the charges and subsequent imprisonment of her husband for which she sought appropriate treatment.
With respect to the paternal grandmother’s personality, I note prejudicial features in her own childhood and the dysfunction in her own family of origin. It also appears that the father suffered significant character pathology which led to difficulties within the parents’ relationship and culminated in his tragically taking his own life in the setting of abandonment by the mother. It is highly speculative however it is likely that these characterological difficulties arose within the family of the paternal grandmother though it is unclear as to the dynamics within that family which led to it manifesting in the way that it did. Whilst personality vulnerabilities are likely, it is not my view that the paternal grandmother could be characterised as exhibiting features of a personality disorder per se however those traits most likely lie in the Cluster B and C range. There certainly appears to be a pattern of behaviour which could be described as high expressed emotion within the paternal family more generally.”
In relation to the respondent mother, Ms Wedge, Dr V concluded in his first report:
“With respect to the mother, Ms Wedge, there was nothing in documentation that would change my view that the mother does not appear to suffer from a psychotic illness. As noted earlier, the mother does appear to suffer anxiety symptoms including having panic attacks as well as developing some obsessive compulsive symptomatology. These symptoms appear to have arisen within the context of the Family Court process and certainly appear to be affecting her functioning to a moderate degree. Whilst one could characterise the development of these symptoms as an Adjustment Disorder, it is also possible that they may represent an underlying Anxiety Disorder.
“With respect to Ms Wedge’s personality, the fact that she remained in a relationship with the father as characterised does suggest personality vulnerabilities. I have noted earlier that she had some mild obsessional traits to her personality and that a sense of lack of control, in particular over the children, appears to have generated significant distress and anxiety in the mother but one suspects this may also play a feature in other aspects of her life. One could speculate as to the presence of Cluster C traits but it would not be my view that she suffers from a personality disorder per se.”
In relation to the suicide of the father, Dr V helpfully provided his expert views and opinions which go a significant way to explaining the rupturing of the prior existing relationship between the mother and paternal grandmother. On page 19 of his first report Dr V notes:
“As an aside I would respectfully make the observation that in my experience the suicide of a loved one can have a devastating impact on families and arouse very strong and often confusing emotions of anger and guilt along with the associated “normal grief reactions”. It would appear that this family in particular that the tragic loss of the father led to considerable conflict between the parties and that that anger and guilt expressed itself within that context and led to a rupturing of that relationship that prior appeared to have been relatively loving and supportive. This is not to excuse or condone the behaviour of the respective parties but more an attempt to explain how it may have occurred in otherwise high functioning and reasonable people. It is a shame that the parties were not offered appropriate counselling with respect to dealing with the father’s death and processing the complex emotions that suicide often exposes and that the mother’s in particular entrenched negative views with respect to the paternal family appear to have arisen in the context of being subjected to the raw and unfiltered emotions of the paternal family in particular. Ultimately no one is responsible for the father’s death except himself and his suicide in particular appears to have been a particularly angry act designed to arouse the strong feelings which ultimately resulted.”
Finally, Dr V from page 19 of his first report sets out his recommendations as follows:
“RECOMMENDATIONS
(i)Given the above formulations it is not my concern that either party would be deprived of the capacity to make long term decisions with respect to the children as a consequence of a psychiatric condition. Whether the paternal grandmother has the legal authority to exercise those capacities is clearly a matter for the Court.
(ii)With respect to the paternal grandmother, Ms Illingworth, given her past experience of Major Depression as well as developing panic/anxiety disorder I would strongly recommend that the paternal grandmother continue to monitor her mental health and engage with a general practitioner and if there was a recurrence of any symptoms that they be treated on their merits.
(iii)Ms Illingworth may also benefit from some further counselling and support around dealing with the issues of grief and loss with respect to the father as well as to assist her in managing the complexities of the relationship between the parties as well as perhaps understanding the degree to which her own behaviour and this behaviour of her family more generally may well have contributed to the rupturing of the relationship with the mother.
(iv)I would have no concerns that the children would be at risk of significant harm in the care of the paternal grandmother unless of course it were found by the Court that the children were at risk of being sexually abused by the paternal grandfather as well as the paternal grandmother demonstrating an ability to protect the children from inappropriate displays of emotion by her or others around her when the children are present.
(v)With respect to the mother, Ms Wedge, I would recommend that she discuss with her general practitioner the benefits or otherwise of commencing an antidepressant given the degree of anxiety which she is experiencing, in particular the ruminations and obsessive compulsive symptoms. In my experience treatment with an SSRI may well provide her some relief from these symptoms irrespective of the outcome of the Family Court process. Ms Wedge clearly has some predisposition to the utilisation of obsessional defences when under stress. She may also benefit from ongoing engagement with a suitably qualified mental health practitioner to assist her in non-pharmacological methods of managing her anxiety and distress. I would recommend that her general practitioner and treating mental health practitioner have access to my report as it is likely I have had access to collateral information that may not otherwise be apparent. It may also assist these practitioners in formulating a management plan for the mother that would be of the great assistance to her.
(vi)I would have no concerns that the children would be at risk of significant harm in the care of the mother.
(vii)As to the contact arrangements that would be in the children’s best interests I would leave to the expertise of others.”
It is apparent from Dr V’s recommendations (stated above) that, in his opinion, the mother was experiencing a degree of anxiety to such a level that he recommended that she discuss with her general practitioner the benefits - or otherwise – of the mother commencing an anti-depressant. Dr V also recommended that the mother have ongoing engagement with a suitably qualified mental health practitioner to assist her in “non-pharmacological methods of managing her anxiety and distress.”
I accept the views and opinions stated by Dr V in his first report. I accept that Dr V has accurately recorded the history provided to him by the mother. Because I have come to the conclusion that the mother is a truthful and credible witness – I accept that what the mother told Dr V is accurate – at least in so far as it relates to matters about which the mother has had direct firsthand experience. This would include, in particular, the mother’s relationship with the father and the mother’s version of what occurred between herself and the paternal family after the mother’s separation from the father and since the father’s suicide.
Dr V’s affidavit annexing his first report was filed on the Court on 12 February 2016. The parties appeared in Court on 16 February 2016. That was the date where the parties agreed on the final consent Orders referred to above.
On that date there were also interim Orders agreed by consent for the children to spend time with the applicant paternal grandmother supervised at LifeCare Family Consultants – the facility conducted by Ms S.
Before considering the evidence in relation to the time that the children spent with the paternal grandmother supervised at LifeCare – it is important to consider the evidence relating to the history of time spent between the children and the paternal grandmother. I note paragraph 364 of the mother’s trial affidavit (filed 21 July 2017) (herein-after referred to as the mother’s trial affidavit). I accept the evidence of the mother in relation to this issue. In paragraph 364 the mother states:
“The parenting arrangements for the children during my relationship with the Father and with their respective maternal and paternal family prior to the Father’s death were as follows:
(a) When my maternity pay ceased in late 2008, I started doing the occasional relief (occupation omitted) day when my mother wasn’t working and was available to babysit X.
(b) In (omitted) 2009 I started working one day each week during (omitted) for the (employer omitted) as a (occupation omitted) in (omitted). My mother babysat X for me each week. (Ms Illingworth states in paragraph 14 of her affidavit, that X was around 1 when she started minding him 1 or 2 days per week. When X was 18 months old, I started working 2 days a week for the (employer omitted). One day X would be with my mother and the other day Ms Illingworth would mind X and Ms R’s youngest daughter C who is about 5 years older than X. This however was only for 8 weeks until I had to cease work due to pregnancy complications child, Y. As indicated by Ms Illingworth, she only ever babysat when my mum was unbailable.)
(c) Later in pregnancy with Y I worked again at my father’s office right up until the week before Y was born. My mother would babysit X.
(d) Y was born on (omitted) 2010.
(e) Once again I received paid maternity leave from (employer omitted). In (omitted) 2010 I recommenced work for (employer omitted), working one day each week with my mother caring for both X and Y.
(f) In (omitted) 2011 we bought a house in (omitted) and I started working part-time for (employer omitted) again.
(g) In (omitted) 2011 I took leave with (employer omitted) and recommenced work for (employer omitted) as it was a much more flexible option with 2 small children. My mother minded the children one of these days and the Applicant the other.
(h) In (omitted) 2011 the Applicant and paternal grandfather moved into Ms R’s house and there were always other people present in Ms R’s home in the afternoons. On all other occasions that The Father and I required babysitting, our children were babysat by my parents.”
I also accept the evidence of the mother contained in her trial affidavit from paragraphs 72 - 82. I note that the mother stated:
“72. As set out below (from paragraph 364), the Applicant was infrequently required to care for the children while the Father and I were in a relationship.
73. From around the Father's death (omitted) 2012 contact between the Applicant and I deteriorated particularly after abuse from Ms R on (omitted) 2012.
74. On (omitted) 2013 (X's birthday), I phoned the Applicant so she could speak to X to wish him a happy birthday. I did not speak with Applicant. X said that the Applicant told him she had a present for him and she would post it to him in the mail. The Applicant knew the address of the house I was living in at the time but X never received a present. For a couple of weeks, he asked me why he hadn't received his present.
75. In (omitted) 2013 after receiving The Father's mobile phone, I received a phone call from Ms P who informed me that she was the Applicant's barrister and wanted to speak to me regarding the Applicant gaining access to my children. I gave her my father's details as he was a solicitor.
76. Communication took place between the two legal parties with final communication being on 9 May 2013 when I offered the Applicant supervised contact with X and Y each month. We never received a response from the Applicant or Ms P in relation to this proposal.
77. I then received a letter from the Family Relationship Centre (Relationships Australia) inviting me to attend mediation with the Applicant. I refer to paragraph 41 of Ms Illingworth's Affidavit and refute that I "”failed to attend." My father informed the Family Relationship Centre that we were in direct communication with the Applicant's legal representative and therefore did not need their services at this time. We explained this was not a refusal to attend.
78. On 25 October 2013, I received an invitation from Legal Aid inviting me to attend a mediation with the Applicant.
79. I have only ever received two (2) phone calls from Ms Illingworth since X's birthday on (omitted) 2013. In around (omitted) 2013, my phone rang both times for no more than two(2) seconds before she terminated the call and no message was left on either of these occasions. Both times I was sitting at my computer doing work, with my phone on the desk in front of me. I had just enough time to glance at my phone and see it was the Applicant phoning before the call was ended by her.
80. The Applicant has never text-messaged me since 16 January 2013.
81. Mediation at Legal Aid occurred on 23 January 2014. No agreement was reached.
82. On 24 March 2014, I received documents advising Ms Illingworth had lodged an application with the Court.”
Since the death of the father the time spent between the applicant and the children has been very limited.
X was born on (omitted) 2008 and Y was born (omitted) 2010. When the father died in (omitted) 2012 – the boys were aged 4 and 2 respectively. After the death of the father in (omitted) 2012 the mother did, on some occasions, make the children available to spend time with the paternal grandmother. The mother remained present during this time.
The first family report prepared by Mr S (annexed to an affidavit filed 21 October 2014) notes in paragraph 4 that the children had not spent any time with the paternal grandmother, in person, since Christmas 2012. Furthermore, the children had not spent any time or communicated with other members of the Illingworth family since after Christmas 2012.
So that when the two children commenced spending time with the paternal grandmother at LifeCare – in the supervised context – more than three years had elapsed since they had last seen the paternal grandmother.
There is a report prepared by Ms S annexed to an affidavit filed 15 August 2017. Ms S’s report is actually dated 27 September 2016 (but it is annexed to the August 2017 affidavit). The contact supervision dates of attendance are stated in paragraph 2. There were visits in March, April, May, July, August and September 2016. The first visit was for two hours and the last five visits lasted for three hours. All visits were supervised. There was a June 2016 attendance scheduled but it was cancelled by the applicant paternal grandmother who was travelling overseas.
It is apparent to the Court, from the mother’s own evidence, and also from the evidence of Ms S – that the mother was quite anxious about the prospect of the children spending supervised time with the paternal grandmother. I note that in paragraph 5 of Ms S’s report she states:
“5. Intake interviews – key issues:
5.1 Ms Wedge presented to her intake interview with her husband Mr K. Ms Wedge, was very emotional and appeared quite anxious to be at the Centre.
5.2 When Ms S asked Ms Wedge about the specific allegations or risk factors which led to Ms Illingworth having supervised time at our Centre, her response was that Ms Illingworth’s husband was a paedophile and Ms Illingworth did not believe it and still supported him. Ms Wedge also stated that Ms Illingworth’s family were abusive toward her and blamed her for the death of the Mr A (the children’s father). Ms Wedge made it clear that the Illingworth family were dysfunctional in their manner of constant conflict and sexual inclinations.
5.2.1 Ms Wedge admitted to having anxiety and depression;
5.2.2 Ms Wedge stated that she did not believe that the children should have contact with any of the other Illingworth family members;
5.2.3 When Ms S raised the issue of outside visits with Ms Wedge – she was quite distressed (crying) and both Ms Wedge and Mr K were unhappy Ms Wedge raised concerns about the children leaving the Contact Centre with Ms Illingworth;
5.2.4 Ms Wedge admitted that she did not believe it was in the boys best interests to have visits with Ms Illingworth stating that they did not even know there was a possibility of contact occurring and that only X had a vague memory of his father – Mr A;
5.2.5 When Ms S asked Ms Wedge what needed to change in order to progress to unsupervised time with Ms Illingworth, Ms Wedge responded that the family should not be allowed access to the children, however, specifically with Ms Illingworth, that she needed to approve of the children’s new family unit (with Mr K and their children).
5.2.6 Ms Wedge commented to Ms S that the scheduling of visits would have to heavily consider Mr K’s availability as she did not believe she would be able to attend the supervised contact centre on her own as it was too upsetting for her.”
I have had close regard to Ms S’s report. I note that in paragraph 6.9 Ms S states, inter alia:
“6.9 Although X and Y appeared to enjoy most of the visits with Ms Illingworth, there were times where they seemed reluctant to attend, introspective or not willing to attend (particularly X).”
The report of Ms S was in fact a joint report of Ms S and Ms A. Neither Ms S nor Ms A were required for cross examination. Their affidavits were both filed 15 August 2017 and they annex the same joint report. I note the overall summary and comment in the Ms S report. It has to be looked at in the context of the psychiatric evidence relating to the mother – to which I will return.
Mr K
Mr K is the mother’s husband. They met in (omitted) 2012. They began dating towards the end of (omitted) 2012 and they were married in (omitted) 2013. Mr K is a (occupation omitted). He actually met the mother when he was performing his duties as a (occupation omitted). In particular, his duty relating to attending upon the mother as part of an investigation into (what was subsequently proven to be) domestic violence perpetrated by the father against the mother. Mr K actually served domestic violence papers upon the father personally. The paternal family, subsequently, took great exception to this and paternal aunt (Ms R) and/or her husband Mr O lodged a complaint with the (employer omitted). Mr K was cleared of any wrongdoing by the (employer omitted). The lodging of the complaint by Mr and/or Ms R caused significant distress to both the mother and Mr K. I accept that there was no wrongdoing on the part of Mr K in forming a relationship with the mother – whom he had met in a professional context when he was carrying out his duties as a (occupation omitted).
In fact, the marriage between Mr K and the mother is solid, steady, loving and secure. There is no family violence involved in the marriage. They both strongly support each other. However, the evidence of Mr K contained in his affidavit is compelling. He has lived with the mother since their marriage in (omitted) 2013 and is the best placed person to give an assessment of the impact upon the mother as a result of these Court proceedings and the application brought by the applicant to spend time with the children. He acknowledges that there have been other stressors in the mother’s life. They are clearly stated in paragraph 33 of his affidavit filed 21 July 2017.
Mr K impressed me as a witness. He is intelligent and sensitive. Understandably, he is greatly concerned in relation to his wife’s health. Mr K has witnessed a deterioration in the mother’s ability to cope with life events (note paragraph 34 of Mr K’s affidavit). Mr K has provided extensive evidence in relation to this deterioration in the mother’s ability to cope with everyday life. I note the following paragraphs of the evidence of Mr K contained in his affidavit:
“32. Since these court proceedings commenced in 2014 I have been concerned with the negative effect upon Ms Wedge should she be made to facilitate the applicant Ms Illingworth having any contact with the children.
33. I have seen Ms Wedge go from being a fun loving and confident woman to a person who at times has struggled to get out of bed. During the last few years Ms Wedge has experienced a number of life changing events. I believe the combined effect of these is having a profoundly negative impact on her. In particular, Ms Wedge has experienced:
a. The loss of a pregnancy
b. The loss of her father
c. These proceedings
Since these events, I observed Ms Wedge to be anxious, under a significant amount of stress and to have difficulty at times dealing with mundane life events.
34. Over the last few years as we approached the pending court dates I have witnessed Ms Wedge’s ability to cope with life events deteriorate. On one occasion I recall we were heading to the (omitted) for a day’s swim when she received a phone call from her solicitor with respect to this matter. Almost immediately I saw a change in Ms Wedge’s demeanour, she became upset and extremely anxious. For the remainder of the day Ms Wedge was upset and withdrawn, she became hypersensitive and very reactive. This continued for some days, during this time Ms Wedge was constantly upset. I observed that Ms Wedge had difficulty spending quality time with her children and I felt that our relationship suffered. Ms Wedge told me that she was aware of this and that this further added to her depressed state.
35. I have noticed a change in Ms Wedge leading up to court hearings or upon receiving correspondence from her solicitor. Her ability to cope appears to reduce as this matter gets closer to Trial.
36. For example, in (omitted) 2014 Ms Wedge, myself and our 5 kids went away for a family holiday. At this time Ms Wedge was anything but the normal confident fun loving person she normally is. Whilst on holiday, I found her collapsed in the shower sobbing uncontrollably. During the holiday, Ms Wedge struggled to get out of bed and had little or no will to do anything. She was generally unable to cope with event or more mundane life tasks. On a number of occasions, I asked Ms Wedge why she was feeling the way she was. She told me that she couldn’t explain it but clearly there was something wrong with Ms Wedge and her emotional state of mind. I became very worried about her and recall on a number of occasions begged her to speak with someone who might be able to help her, as I was concerned that I did not have the knowledge or ability to be able to help how she was feeling. It was my view based on my observations of Ms Wedge’s behaviour, and various training I have undertaken that she was suffering from depression.
37. In the lead up to this holiday Ms Wedge had gone through a number of very emotionally draining incidents. In (omitted) 2014 Ms Wedge had suffered from an ectopic pregnancy and subsequently required emergency surgery to remove this. In November 2014 Ms Wedge was required to attend a meeting with the Family Report writer and subsequently placed in a position where she had to meet Ms Illingworth and allow the children to spend time alone with her and her extended family. Even though at the time her youngest child had no recollection of whom these persons were, and her oldest child had only a vague recollection. On our 1st wedding anniversary in (omitted) 2014 Ms Wedge received the second report from the Family Report Writer, receiving this report from the Family Report writer on this day was extremely upsetting for both Ms Wedge and I. After these incidents, I noticed that Ms Wedge could not cope with day to day tasks. I could see Ms Wedge constantly struggling with wanting to be a good parent to her children but not having the emotional ability to do this. Ms Wedge’s relationship with her children, myself and her step-children deteriorated and suffered significantly at this time. Ms Wedge and I have a very strong and committed relationship and one we both treat as a priority in our lives. Our relationship was not rushed into but carefully considered given we have both come from previous relationships, it thankfully I consider that it remains very strong despite the extreme amount of strain Ms Wedge has been under.
38. After returning from our holiday at the (omitted) in (omitted) 2014 Ms Wedge began seeing a psychologist.
39. In (omitted) 2015 we found out that Ms Wedge was pregnant with another baby, this brought great joy to our lives and I saw a change in Ms Wedge’s overall mental health. Even though I would say Ms Wedge’s mental health improved significantly at this time she told me that she was concerned about the health of our baby and what effects a court hearing would have on our child. She told me she was very worried that if she suffered another bout of depression she may put at risk the health of our unborn child.
40. In April 2015 we attended another court date where we were given dates in February 2016 for a hearing. The effect of this on Ms Wedge was almost immediate. I observed that she stopped worrying about the outcome of the court proceedings and concentrated on her children and her baby. I would say this was the first time in a couple of years that Ms Wedge enjoyed things, without worrying about the court outcome.
41. In (omitted) 2015 Ms Wedge suddenly lost her father, this was a very hard time for Ms Wedge as not only had she lost her dad, we knew he would never get the opportunity to meet his new grandson. Naturally this loss continues to have significant impact on Ms Wedge, and her sons.
42. In addition to this I noticed in about November 2015 as communication again started with our solicitor and the February 2016 court date got closer that Ms Wedge’s behaviour was once again starting to change. Ms Wedge once again started to appear to be getting stressed and anxious at minor things that normally would not have concerned her. Ms Wedge again began to make excuses for not attending events preferring to remain home. Ms Wedge is normally a very task orientated person and takes pride in planning and organising events, whether these are with her family or friends or just around the house. I noticed that she started to get short and snappy with kids, in particular her step-children and myself.
43. I could tell from conversations with Ms Wedge that she was once again starting to think about the results of the upcoming court date and its results. Ms Wedge repeatedly says, “why can’t we just be left alone to have our life together, why are these people doing this to us?” and “how can I give my kids to people who are part of such a dysfunctional family and expose my children to such conflict.” Ms Wedge has told me on a number of occasions that she believes Ms Illingworth was aware of what Mr G had done to her own siblings and that she failed to protect them. Ms Wedge has told me that she is very anxious that she will be forced to expose her children to an unnecessary risk and that as a mother she will not be able to protect her children.
44. As the Court date gets closer Ms Wedge’s behaviour has continued to change, she continues to be more anxious and I believe is once again close to if not suffering depression. I consider that it would be very hard for Ms Wedge to admit that she may need help as she has always been such a confident person. It is my observation that at the moment it is only the need to care for our son that is preventing her from becoming more depressed. Ms Wedge is starting to get to the point where she on occasions finds it hard to get out of bed and become motivated. Our relationship is strained at time partly due to Ms Wedge’s change in behaviour and my inability to know how to deal with that.
45. Based on my observations of Ms Wedge over the last few years, and her changing behaviour about the time of court proceedings I am scared of what will happen to Ms Wedge should she placed in a position of having to allow her children contact with the Illingworth family. Ms Wedge has told me that she firmly believes that it will be detrimental to them to have this contact and that if they are given contact she will have failed as a mother to prevent this from happening. Based on my observations of Ms Wedge over the years I don’t believe Ms Wedge will emotionally be able to cope with any orders allowing her children to interact with Ms Illingworth and the Illingworth family. I have real concerns that Ms Wedge’s mental state of mind will deteriorate to a point where she will not be able to be the mother and wife she wants to be. Based on my observations of past changes I am concerned that her three children will be adversely affected. I believe this in turn will have a direct and significant negative effect on bother her relationship with her children but also her relationship with me, and this scares me. From my observations of Ms Wedge I cannot see any good coming to Ms Wedge’s children or Ms Wedge’s welfare should the Illingworth family be allowed to have contact with her children. I can only see that Ms Wedge’s ability to provide an emotionally stable and supportive environment for her children will be severely eroded.”
To the extent that any of the evidence above contains opinion evidence of Mr K – I do not have regard to the opinion evidence. Of particular note, though, are the specific observations made by Mr K in relation to the mother.
I accept the evidence of Mr K – in particular in so far as it relates to his direct observations of the mother and the impact upon the mother of the court proceedings, court dates and the prospect that the children may be ordered to spend time with either the paternal grandmother or other members of Illingworth family.
I also note the following evidence of Mr K in relation to the mother’s reactions, her anxious state and her ability to cope during 2016 when the children were spending time at the LifeCare Contact Centre with the paternal grandmother. In particular, I note the following evidence:
“46. On 16 February 2016, I attended the Family Law Court with Ms Wedge in relation to this matter. As a result of negotiations with Ms Illingworth, Ms Wedge agreed to Ms Illingworth having limited contact with both X and Y at a contact centre. I can recall that Ms Wedge was very upset about this, however she advised me that she thought this was her only opportunity to have any input into what happened with her children.
47. I recall that on 20 March 2016, Ms Wedge attended LifeCare Contact Centre for a meeting with Ms S and Ms Illingworth. I was not present at this meeting. I recall that when Ms Wedge returned home she was very upset. I recall Ms Wedge telling me about the meeting and conversations that had taken place. While telling me, I saw Ms Wedge become more and more upset. Ms Wedge kept saying, “They just don’t get it, they just don’t get it. I can’t do it. She has not changed, she still blames me for his death.” I saw Ms Wedge become increasingly upset as she spoke of the meeting. Ms Wedge expressed concern to me that she felt she had let her children down by agreeing to letting Ms Illingworth see them.
48. I recall Ms Wedge attending a number of Contact Centre visits. On most of these occasions I went with her. I saw Ms Wedge actively having to encourage the boys to go these visits and heard her “talking up” the visits in an attempt to ease their concerns. I saw that this had a great impact on Ms Wedge as I would see her composure change when she returned to the car. Ms Wedge would become either very upset or angry during the drive home.
49. During the time the contact visits occurred, we would on occasion receive an email from the centre. Upon receiving these emails, I would see Ms Wedge’s demeanour change. As the she went to open the email I saw that she would become very anxious. Her mood changed and she would go very quiet and withdrawn. She often expressed concern to me that each time she thought about the visits she would feel sick. Ms Wedge also expressed concern that similar things would happen in the days leading up to the visits.
50. As a result of this contact I had to take a sick day on one occasion, and other occasions changed my shifts to enable me to be around. I did this as I could see that Ms Wedge was anxious and did not appear to be able to cope with even the most basic of tasks without becoming very anxious. This anxiousness often would result in her becoming highly agitated and emotional. I would see that situations that would normally not concern her would become big issues to her. I recall on 16 July 2016, prior to the contact commencing, Ms Wedge was in our room lying in bed. I recall her saying “I just can’t do it, I just can’t do it.” As a result of this I contacted work and advised that I would not be able to attend my shift that day, to enable me to care for Ms Wedge.
51. As the contact continued I could see that Ms Wedge was less able to cope with taking the children to the centre. Over the course of the six (6) months that contact continued I became increasingly concerned for Ms Wedge and her mental health. I recall Ms Wedge telling me on a number of occasions that she was not coping and did not think she could do it anymore. Ms Wedge would then become very despondent that she was not being a good mother to our baby, as she felt that she was spending all her energy focusing on the visitations and worrying about future contact visits.
52. As result of an increased level of guilt, anxiety and stress Ms Wedge would often find it difficult to sleep, this in turn would make Ms Wedge very irritable. During this time a great deal of stress was placed on our marriage and family life. Owing to Ms Wedge’s state of mind and the stress we were both feeling as a result, we started to argue a great deal. These arguments were often over nothing and were the result of us not coping with the situation. I have found myself becoming increasingly mentally and emotionally exhausted. I have tried to care for Ms Wedge as much as I can and support her, but this has been emotionally draining on me. This in turn has had a negative effect on both myself and my children, I have found myself becoming increasingly irritable with minor things that would normally not bother me.
53. Ms Wedge’s inability to cope with the thought of Ms Illingworth seeing the kids has pushed her to the point where I have been worried about her safety. On several occasions, I have had to beg her to talk to someone, in particular her psychologist. Ms Wedge has largely done this and I think in the short term it has provided some assistance to her, but it has done nothing to allay her fears of what might happen to her children should contact be awarded.”
I also note that Mr K’s daughter no longer visits the family home. The mother stated that this is because of the mother’s emotional state. Mr K seems to agree – although he is not critical of the mother. The fact that Mr K’s daughter no longer visits Mr K’s house has caused him a significant amount of distress, and it has also caused the mother a significant amount of distress.
It is apparent from the evidence of Mr K that the mother’s ability to cope with everyday life has been specifically impacted as a result of the Court proceedings and the prospect that the Court might order that the children spend time with the paternal grandmother. These findings are made because Mr K has given clear evidence that the mother became more anxious and less able to carry out the tasks of everyday life as each Court date approached; when she was contacted by her lawyer and needed to turn her mind to the Court proceedings and when the children were required (by court Order) to spend time with the paternal grandmother at the Contact Centre.
During submissions on the last day of the Court hearing (1 September 2017) Mr McGregor, Counsel on behalf of the applicant paternal grandmother, applied for an adjournment of the matter in order to recall Dr V to allow certain matters to be put to him. In particular the application related to a request to recall Dr V and put to him Ms J’s notes. The adjournment application was refused and reasons were given on that occasion.
It is contended on behalf of the applicant that the mother has other stressors in her life. Having heard the evidence of the mother and Mr K, I have no doubt that Mr K’s daughter is reluctant to visit the Wedge household because of the anxious and emotional state of the mother.
B’s stepfather (and B’s mother) were apparently interviewed by police after a complaint was made because of the conduct of B’s stepfather towards B. Nothing came of that but B no longer visits his mother’s house. He sees his mother separately. B’s stepfather has banned him from visiting that family’s home.
Obviously, therefore, there have been some other stressors in the life of the mother – but all of these facts were known (substantially known at the very least) by Dr V when he prepared his second report.
Dr V's Second Report
Dr V’s second report dated 9 August 2017 is annexed to his affidavit filed 15 August 2017.
Dr V reinterviewed the mother on 21 July 2017. The following paragraphs from Dr V’s second report are particularly noteworthy:
“The mother reminded me that her date of birth is (omitted) 1980, making her 37 years old. She reminded me that she last saw me, “2 weeks after I had the baby, in (omitted) 2015.” She informed me that she is currently working full-time as a (occupation omitted) and remains married to her husband Mr K.
She informed that they have six children together including her three stepchildren aged 14, 12 and 11 as well as the subject children now aged 8 and 7, as well as a 20 –month-old child from her current relationship.
She informed me that her 14-year-old stepdaughter currently lives full time with her mother whilst the 12-year-old stepchild lives, “full time with us and rarely sees her mother,” whilst the 11-year-old remains on a week about arrangement. “There were consent orders for 50-50 but I think because of this going on and my emotional state at home, it affected the eldest child… if I had a breakdown at home.” “When contact was ordered I wasn’t in a good head space and shortly after the daughter started living with her mother.” “The 12-year-old started living with us because he wasn’t getting on with his stepfather and then his stepfather said he wasn’t welcome in the house.”
With respect to the subject children she informed me that there was currently no contact between the children and the paternal family since 8 December last year. “Prior to this, in February 2016, the grandmother had supervised contact at a Contact Centre once per month for three hours supervised.” “The last contact was in September but I couldn’t book further contact for my own issues and the kids didn’t want to go.” “I spoke to my psychologist and the GP as well as the kids’ psychologist.” “The grandmother then went to Court because I wasn’t following the Orders and the judge basically stopped the Orders based on my psychologist’s report.”
When I enquired as to her understanding as to why she had been asked to see me, “my psychologist in December said the proceedings were causing me anxiety, but given the psychologist was my treating psychologist, the judge said they wanted someone independent and wanted a psychiatrist.”
…
When I enquired as to her understanding of any recommendations I had made, she recalled that I recommended she discuss commencing an antidepressant with her GP. “I did discuss it with my GP and my psychologist and my husband.” “I was breastfeeding at the time and for his health I didn’t want to do that, they explained that there are certain ones that are safe but some medication still crosses to the Bub.”
When I enquired how she was going currently, “obviously Court is coming up in the next month.” “Prior to that I had some reprieve, I’ve been on edge, flying off the handle, having nightmares and sleep disturbance, and my appetite is all over the shop.”
…
She denied any suicidal ideation, “I did say to my husband, when I felt at a big loss, ‘I’m not the person I was when I met him.’” She then opined, “I used to not understand depression but now I totally get it.” “I have said I can appreciate how people can want the pain to be taken away,” but she denied any specific suicidal ideation herself. She reported at time she feels that life was not worth living, but denied any plan or intent to end her life. She also denied any homicidal or infanticidal ideation.”
I note what the mother told Dr V about her own anxiety during the time that the children were attending at the Contact Centre to spend time with the paternal grandmother. I note the following from Dr V’s report commencing in the last paragraph on page 2 of that second report:
“In terms of her anxiety, “it wasn’t good at all during the contact period.” “I would get so worked up before and after, not being able to cope with day-to-day things, everything just became too hard like cooking dinner or doing the home reading, so my husband had to take over.” “I wasn’t one to go out on my own because I was concerned I’d run into the paternal family.” She reported that she was suffering panic attacks, “I had a really bad one at a shopping Centre at Santa’s Photos because I got a phone call from the solicitors who told me I had to be at Court.” “I just couldn’t drive home, I just felt sick.” She denies any recent panic attacks however, “but I was shaking in the waiting room coming here today.””
The mother spoke further about the impact upon her – during that period of time when the children were spending time with the maternal grandmother at the Contact Centre. I note that, from the bottom of page 3 of his second report Dr V states:
“When I enquired as to what ongoing concerns she had about the welfare of the children in the care of the maternal grandmother on a supervised basis, “when I first consented to it I thought I could live with that, it was just with the grandmother, I thought I could cope with that, and the first session the supervisor seemed really good and the boys came away not too weirded out by it.” “I walked away thinking I can live with it.” “Then the second session went downhill, the grandmother immediately started speaking to the supervisor about involving the extended family and had to speak to the ICL about the Orders.” “She took them out to the city without a car seat and let them go to the toilet by themselves.” “They did report they needed to intervene saying they needed to go to the toilet and having something to drink.” “The kids were getting very angry that I would make them go when they didn’t want to go.” “The older child was never that into it but I tried to talk it up.” “He said ‘don’t take me there ever again.’” “He doesn’t talk about things-he bottles it up.” “Last contact he refused to get out the car and I had the other kids in the car, I wasn’t going to drag him there.” “I had said he had to go and he needs to tell that to the lady, he said he had told them ‘but they don’t listen to me.’” “They had a different supervisor there every time… they basically peeled the child off me.” “The younger child said he didn’t like going, he didn’t like seeing the grandmother and he came back with wet pants and started soiling himself and pooing in the bath every night, I got quite concerned.” “I started talking to a child psychologist as well as advice from my psychologist.” When I enquired as to what she believed was upsetting the children, “I’ve no idea, I know the children didn’t behave very well and were calling her names in writing rude things on the board.”
“I never wanted it to happen in the first place, I was going against what I wanted but I thought I had no choice.” “I still feel really guilty I made them go, it clearly affected them.”
When I enquired as to what she felt would be the best outcome of the Family Court process, “that they live with me and have no contact with the paternal family.”
When I enquired if she continued to breastfeed said, “no I ween all my children at 12 months.”
When I enquired as to who she had explained the contact with the grandmother to the children, “I spoke to the family counsellor at the Contract Centre and with my psychologist, I had no idea because the children didn’t know their father.” “I followed their instructions, that she is part of dad’s family and sometimes people meet here.” “When the eldest questioned, I did eventually explain that the judge had made this rule and I had to take him because he (the child) was getting so angry with me for making him go.” “I started talking to him about his emotions, it was about school or not wanting to go to Contact, but it got to the point where I wouldn’t tell him he was going because he’d be on edge for a week.””
Once again, in relation to this second report of Dr V – I accept that Dr V has accurately recorded the mother’s comments. Furthermore, I accept the underlying truth of the mother’s statements made to Dr V – in so far as they relate to what she observed of the children during the time of the contact visits, how the mother felt herself during the time of the contact visits, what she understood to have occurred during some of the contact visits and the reaction of the children to the contact visits.
I note the following provisional diagnosis by Dr V commencing at page 4 of his second report (emphasis added):
“DIAGNOSTICS (PROVISIONAL)
On cross sectional assessment, I could find no evidence of psychosis. The mother did report being diagnosed with a “depressive and anxiety disorder” by her treating psychologist. Certainly, cross sectionally she did not present with any symptoms or signs of a Major Depressive Episode although did describe significant anxiety symptoms with associated neurovegative disturbance, as well as panic features. Whilst the Court process, as well as the proposed contact, appears to have been a major precipitating factor, I am concerned that the degree of the mother’s symptomatology, in particular with neurovegative disturbance , would suggest that this is more than a mere adjustment disorder and that in fact the mother has developed an Anxiety Disorder. I also note that the mother, with her general practitioner, elected not to proceed with a prescription of antidepressant medication due to the fact that she was continuing to breastfeed. I note however that the mother ceased breastfeeding some months ago.
As to the mother’s personality the mother does continue to display some obsessional features to her personality.
The mother also describes concerning behaviours in the children suggestive of significant emotional distress. I am somewhat perplexed as to what may have occurred within a supervised environment that would cause distress. It should be noted that I have no particular expertise in the assessment and management of children or adolescents, but would suspect that the children’s anxieties in attending contact with the paternal grandmother may have derived from being exposed to the mother’s self-declared significant anxiety with respect to these issues. The mother also reports a significant irritability in herself that has caused some tensions within her and her partner’s blended family. I would expect that the subject children have also been exposed to this to some degree. These of course are only speculations.”
After reviewing the significant amount of further evidence, Dr V stated his conclusions on page 12 of his report as follows:
“CONCLUSIONS
The documentation provided has clarified some issues, in particular I note the report of Ms S that the children were generally content in the care of the paternal grandmother and had no concerns about the children’s welfare in the care of the paternal grandmother on a supervised or unsupervised basis. I noted that the children had displayed affection towards the paternal grandmother. I also note that the mother appeared somewhat selective in her reading of this report when conveyed to myself and also in the affidavit material, and seemed to hold a wholly negative view of the children’s time spent with the paternal grandmother. I also note that Ms S observed that the mother had an entrenched view about the paternal grandmother and the extended family, and that this was unlikely to shift. I also note the report of the mother’s treating psychologist, and that she was burdened by significant anxiety and depression and was becoming socially avoidant and that it was adversely affecting her parenting. I also note that the paternal grandmother reports that the mother offered to facilitate contact under her own supervision and that this offer was declined. I also note that the mother and paternal grandmother participated in one group counselling session only. I also note that the mother expressed a view that the helping professionals were not interested in the children’s best interests.
With respect to the diagnostic issues in the mother, there was nothing in the documentation that would change my view that the mother has developed a psychotic illness. It would remain my view, upon reading the documents, that the mother most likely did not develop a major depressive episode but instead developed an Anxiety Disorder with Panic Features. I note I observed obsessive compulsive symptoms on my initial interview with the mother. The mother was somewhat minimising of this in the follow-up interview.
With respect to the mother’s personality, I remain concerned that the mother continues to demonstrate a somewhat obsessional approach to the children’s contact with the paternal grandmother and that this obsessionality has impacted on other aspects of her life. Whether it would meet the criteria for an Obsessive-Compulsive Personality Disorder remains unclear but nevertheless these vulnerabilities appear significant. They are likely to be exacerbated when the mother is under significant stress or burdened by a mental illness (such as an Anxiety Disorder).”
After his conclusions, Dr V stated his recommendations:
“RECOMMENDATIONS
(i) Given the above formulations, it would not be my view that the mother would be deprived of the capacity to make long term decisions with respect to the children.
(ii)With respect to the mother’s decision making around facilitating access with the paternal grandmother, it could be argued that the mother’s anxiety disorder coupled with her obsessional personality style has clearly impacted upon these decisions, despite professional views that the children would benefit from contact with the paternal grandmother and the extended family, but it would not be my view that the mother’s capacity in this regard is deprived fully (although one could perhaps argue that it is perhaps impaired).
(iii)With respect to the treatment of the mother, I would recommend that the mother continue to seek ongoing treatment with a suitably qualified mental health practitioner. I am somewhat concerned that the mother had reported that she had not attended upon her treating psychologist for some months despite the fact that she was suffering ongoing significant symptoms, and would suggest that the mother would benefit from more regular attendance.
(iv) I would remain of the view that the mother would benefit from a trial of an antidepressant medication such as an SSRI, given the negative effect on her functioning more generally of her persistent anxiety symptoms. Even if the Court were to find that it was not in the children’s best interests to have any ongoing contact with the paternal grandmother or paternal family whatsoever, I would encourage the mother to continue to discuss with her general practitioner her psychological symptoms and whether treatment with a pharmacological agent would be indicated, particularly if these symptoms were to persist.
(v) If the Court were to find that it was in the children’s best interests to indeed have an ongoing relationship with the paternal grandmother and/or the extended family, I would be more inclined to recommend that the mother seek treatment with a pharmacological agent, either with her general practitioner or with a suitably qualified psychiatrist.
(vi) If the Court were to find to find it was in the children’s best interests to have an ongoing relationship with the paternal grandmother, the mother would benefit greatly in my view, from developing strategies and tools to protect the children from her significant anxieties and concerns about the paternal family. It would appear that the mother’s anxieties have either consciously or unconsciously impacted upon the children.
(vii) If the Court were to form the view that it was not in the children’s bests interests to have an ongoing relationship with the paternal grandmother or paternal family more generally, whilst there may be some improvement in the mother symptomatology I would remain concerned that her obsessional defences and anxiety symptoms may persist, as one would suspect that in the context of a blended family of six children, that a degree of chaos would be the norm, and that the mother would benefit from considerable assistance in adapting to and accepting her lack of control over this.
(viii) If the Court were to form the view that it was in the children’s best interests to have an ongoing relationship with the paternal grandmother and the extended family more generally, I would be of the view that the mother would need considerably more assistance and support than she has hitherto received both psychiatrically and psychologically, so as to meaningfully encourage the children to form a beneficial relationship with the paternal grandmother and paternal family more generally.
(ix) As to what contact or custody arrangements would be in the best instead of the children, I would leave that to the expertise of the others.”
I accept the evidence and the opinions of Dr V.
Dr V concluded that the Court process – as well as the proposed contact (with the paternal grandmother and/or paternal family) appears to have been a major precipitating factor in the development by the mother of an Anxiety Disorder with Panic Features. This is apparent from the reading of Dr V’s second report. Dr V also gave evidence during the course of the hearing.
During his oral testimony given on 21 August 2017, Dr V clarified one aspect from his second report (on page 4). Dr V confirmed that there was no psychotic illness suffered by the mother.
Mr McGregor, Counsel on behalf of the applicant paternal grandmother, cross examined Dr V in relation to treatment that the mother might receive. At page 10 of the transcript (from line 26) I note the following evidence:
“MR McGREGOR: Thank you, Doctor. Now, in subparagraph 3 you there say that you would recommend that she seek ongoing treatment or continue to seek ongoing treatment with a suitably qualified mental health practitioner?-
DR V:---Yes.
MR McGREGOR: And in four you say you’re of the view that she would benefit from a trial of an antidepressant medication such as an SSRI?
DR V:---Yes.
MR McGREGOR: And in five you say you would be more inclined to recommend the mother seek treatment with a pharmacological agent either with her GP or a suitably qualified psychiatrist and you, in six, say she would benefit from – greatly from developing strategies and tools to protect the children from her significant anxieties and concerns. Now, those are suggestions only that you are making, are they not, which you believe would assist the mother?
DR V:---Yes.
MR McGREGOR: But you are not suggesting that the mother could only support the children having contact with the paternal grandmother and family if she undertook treatment with a suitably qualified mental health practitioner and/or took antidepressant medication and the like, are you?
DR V:---Look, it – it – I guess I – I take the – the point of view that it’s not my place to insist - - -
MR McGREGOR:Yes? ---
DR V:- - - on a – therapeutic decision-making between a patient and a doctor. I would be of the view that I think the mother would struggle without more, let’s say, assertive treatment around her anxiety symptoms and, in my view, if she were my patient, which she obviously isn’t, I would be strongly advocating that she be treated with some form of pharmacological agent and at the same time, ultimately, that’s a decision for the mother in the context of a therapeutic relationship.”
Dr V, therefore, stood by his written opinion – to the effect that the mother would struggle to support the children having contact with the paternal grandmother – without more assertive treatment around the mother’s anxiety symptoms. In particular, Dr V gave evidence that, if the mother were the patient of Dr V, he would be “strongly advocating” that the mother be treated with a pharmacological agent.
Under cross examination by Mr Thiele, Counsel on behalf of the mother, I note the following evidence from Dr V from line 41 on page 11 of the transcript (Monday 21 August 2017):
“MR T: And X and Y as seven and nine year old you would expect that they would rely significantly upon their mother and they would rely on her for their day-to-day care, wouldn’t they?
DR V:‑‑‑Yes.
MR THIELE: And so their mother’s health is directly connected to X and Y’s welfare, isn’t it?
DR V:‑‑‑Yes.
MR THIELE: And by health, that would also include the mother’s mental health?
DR V:‑‑‑Yes.
MR THIELE: As part of your diagnosis you also included that the mother has significant vulnerabilities for obsessive compulsive personality traits. That’s correct, isn’t it?
DR V:‑‑‑Yes.
MR THIELE: Does that contribute to the mother’s anxiety disorder, those personality traits?
DR V:--- That’s a good question. I think if she – I think people who have those sorts of personality traits are usually more prone to developing illnesses such as major depressive disorders and anxiety disorders. I think that there is good literature around that. It’s also true that if someone does have those traits that they are more likely to become apparent when the person is burdened by mental illness, as well as burdened by other stressors ‑ ‑ ‑
MR THIELE: Yes?‑‑‑
DR V: - - - psycho-social stressors, but certainly, the presence of an anxiety disorder would be likely to contribute to a more – those personality traits impacting on the patient much more than would otherwise be the case.
MR THIELE: So one of those – one of those contributing factors you just mentioned was stressful matters. I will call them stressful life events – is that correct?
DR V:‑‑‑Yes.
MR THIELE: In paragraph …(on) page 4 of your second report you –… you state that a major precipitating factor of the anxiety disorder for my client is the court process… and to spend – and that the prospect of the children spending time with their … paternal grandmother. … That’s the stress for my client?
DR V: Yes… bearing in mind that this is based on the information only provided by the mother, but yes, … – on the information provided by the mother it appeared to me that the court process, as well as the proposed contact, were … what I describe as major precipitating factor.”
I accept that the information provided by the mother to Dr V was both accurate and truthful. I also accept the opinion of Dr V. This leads the Court to conclude that the court process (i.e. this family law litigation) as well as the proposed contact (i.e. between the children and the paternal grandmother) have been a major precipitating factor in the development by the mother of an Anxiety Disorder with Panic Features.
Dr V gave further evidence on page 13 of the transcript from line 16 (under cross examination by Mr Thiele) as follows:
“MR THIELE: So it would be your view then that unsupervised time with the paternal grandmother would likely cause a deterioration in the mother’s mental health?
DR V: I think any change other than what she agrees with would be likely to cause her significant distress. So any change to those contact arrangements. So in – the short answer to your question would be yes.
MR THIELE: Just so we are clear, when my client – or when the mother consulted you there was no time occurring because that order had been suspended by this court in December of 2016?
DR V: Yes.
MR THIELE: So is that still your evidence, that any change to that would cause significant distress to the mother?‑‑‑
DR V: Yes.
MR THIELE: And certainly then, unsupervised time with the paternal family – the extended paternal family would cause a deterioration in her mental health?
DR V: It may well do, yes, and – and – well, I would say it would be likely to. It’s always difficult to predict the future, of course.”
In these paragraphs the paternal grandmother has attempted to make excuses for her son Mr A – or at the very least has sought to minimise his conduct towards the mother. In particular I note from the above paragraphs: From paragraph 23 – “… all he wanted was for Ms Wedge and the boys to come back home. He loved her but I think that she was not an affectionate person and Mr A has always showed his feelings and emotions…” – from paragraph 24 – “Sometimes I think that she did that so as to aggravate Mr A even more so he could react.” From paragraph 26 – “… then he found out that Ms Wedge was seeing the (omitted) that served him the DVO which made him even more angry…”.
The paternal grandmother did not make any appropriate concessions concerning this evidence whilst under cross examination. This is further evidence of the paternal grandmother’s lack of insight.
The paternal grandmother’s views in relation to the mother as articulated in paragraphs 23, 24, and 26 of the paternal grandmother’s trial affidavit do represent an unacceptable risk of harm to the children. I do consider that that risk of harm “is probably able to be sufficiently managed or ameliorated by… supervision.”(See Blinko (supra)).
However I come to the conclusion that that is a moot point. There is a much greater risk to the children because of the detrimental impact upon the mother’s health if the Court were to order any time whatsoever between the paternal grandmother and the children. An Order for time (under any format) between the paternal grandmother and the children would (to use the words used in Blinko (supra)) “erode the mother's capacity to care for the children”. The need for peace and tranquillity in the mother’s household is a more compelling need for these two children and is sufficient to justify an Order prohibiting the paternal grandparent (or indeed any other member of the Illingworth family) from spending time with the children (again I have utilised the wording used by the Full Court in Blinko (supra) in paragraph 83).
It is abundantly clear from the evidence of Dr V, Mr B and Ms J (as outlined above) that the mother’s ability to function as a parent and her capacity to care for the children will be seriously eroded on an ongoing basis if the Court were to Order that the children spend time with the paternal grandmother.
As to the mother’s anxieties – I have come to the conclusion that her anxieties are genuine and rational. I note the following evidence:
a)the mother was subjected to significant family violence at the hands of the father, Mr A.
b)Mr A’s final act of violence was, in fact, his own suicide. I note the evidence of Dr V in this regard.
c)The fact that the paternal aunt has blamed the mother (in writing) for the death of the children’s father.
d)The paternal uncle, Mr O, made a formal complaint to the (omitted) about Mr K – causing significant distress within the mother’s household.
e)The phone call made on 12 April 2012 by Ms R to the mother – where Ms R was yelling at the mother and saying that the father’s death was the mother’s fault (in this regard I note page 152 of the mother’s trial affidavit).
f)The harassment and persecution felt by the mother from both the paternal grandmother and Ms R in relation to the return of the father’s mobile telephone after the father’s death.
g)The change in the children’s behaviour once time commenced with the paternal grandmother at LifeCare Contact Centre.
h)The exacerbation of the mother’s anxiety symptoms once supervised time commenced with the paternal grandmother at LifeCare Contact Centre.
i)Notwithstanding Order 7 of the Orders made on 16 February 2016 indicating that time was only to involve the paternal grandmother at the contact centre – the paternal grandmother asked Ms S for permission to include her other grandchildren in the LifeCare visits.
j)The fact that the paternal grandmother did not comply with Order of 10 of the Orders of 16 February 2016 – in that the paternal grandmother did not obtain the necessary psychological counselling or psychotherapy as ordered by the Court on that occasion.
k)There are prejudicial features in the paternal grandmother’s own family – as follows:
i)The paternal grandmother herself was a victim of sexual and physical abuse as a child (at the hands of her own father).
ii)The paternal grandfather was tried and convicted on two occasions (by two separate juries in the District Court of Queensland) for serious sexual offences against the paternal grandmother’s brother and sister when those siblings were minors. The allegations concerning the paternal grandfather occurred when the paternal grandmother was in the direct presence of the paternal grandfather – or at least within the household of the paternal grandfather. The paternal grandfather was incarcerated in respect of both of those convictions. He was subsequently successful on appeal in respect of both of those convictions.
iii)Notwithstanding the fact that the paternal grandfather had his convictions overturned on appeal, it is important to note some further facts surrounding that evidence. In respect of one of the convictions – it was actually quashed by the Court of Appeal in Queensland. In respect of another conviction the matter was sent back to the District Court for the paternal grandfather to be re-tried. That has not occurred to date. The paternal grandmother gave evidence that the Director of Public Prosecutions had notified the paternal grandfather that the charges would not pursued. No document has been produced to the Court in that regard.
iv)The paternal grandmother’s siblings do not speak to the paternal grandmother. There is a significant rift within the Illingworth family.
v)The paternal grandfather has never filed an affidavit in these proceedings. No Order has been sought for him to spend time with the children – but the mother does not accept the paternal grandmother’s assurances that the children would not be brought into contact with the paternal grandfather. The paternal grandmother does not believe the allegations that were made against her husband. She said as much in an affidavit.
vi)The paternal grandfather was not subjected to cross examination in these proceedings – because he did not file an affidavit. The standard of proof required in a civil case is, of course, lower than that required in a criminal case and – because the paternal grandfather did not file an affidavit and no order is sought in his favour – this Court was not called upon to consider the evidence relating to the paternal grandfather and the siblings of the paternal grandmother.
This matrix of facts has, nonetheless, left the mother in a difficult position because she does not know where the truth lies and sees the paternal grandfather as a potential danger to the children. The mother did help the paternal family in preparation for the trial or trials of the paternal grandfather. I do not think this should be held against the mother. Upon the convictions being pronounced or returned it may well be that the mother’s view changed altogether.
The fact that the Appeal Court set the convictions aside is easily understood by the Courts and by lawyers as a complete wiping of the slate so far as the paternal grandfather is concerned. Lay people, such as the mother, do not necessarily see things in the same light. I am not critical of the mother and nor am I critical of Mr K for the views that they have expressed concerning any risk to the children of being brought into contact with the paternal grandfather. The evidence, as I say, is untested concerning the paternal grandfather – on a civil standard in these proceedings.
I accept the evidence of the mother that she had witnessed family violence involving the father, the paternal grandmother and the paternal aunt, Ms R during the mother’s relationship with the father (I note this is contained in the mother’s trial affidavit between paragraphs 125 and 170).
It is correct to say that there are prejudicial features within the paternal grandmother’s own family.
The mother’s anxiety is both genuine and rational. The paternal grandmother has certainly, personally, suffered a significant amount of family violence perpetrated against her. Most notably that was involving her own father.
The matters outlined above, in a cumulative sense, have no doubt influenced the mother’s thinking in relation to the Illingworth family. Having regard to the nature of the evidence and indeed the cumulative effect of that evidence – I have come to the conclusion that the mother’s fear of harm being caused to the children (in one sense or another) is rational and genuine. Within the mother’s current family (with Mr K) there is no family violence. I accept that evidence from the mother.
The cumulative effect of the circumstances outlined above leads me to conclude that the mother’s fear is genuinely held and rationally based. To borrow from the decision in Blinko (supra at paragraph 84) – the effect upon the mother in this case of the children spending even supervised time with the paternal grandmother (or any other member of the paternal family for that matter) would place the children at an unacceptable risk of harm – comprising or arising from the mother’s anxiety itself.
The Court must turn its mind to whether or not the risk to the children could be ameliorated. If the paternal grandmother’s time with the children was supervised for instance would that ameliorate the risk to the children? I have come to the conclusion that it would not. During 2016 the children spent supervised time with the paternal grandmother on six occasions at Ms S's LifeCare Contact Centre. There was one visit in each of the following months namely March, April, May, July, August and September 2016. The evidence of the mother, Ms J and Mr B is that the mother’s anxiety was exacerbated during that period of time when the children were spending supervised time at the contact centre with the paternal grandmother. Indeed, the matter came back to Court in December 2016 and the supervised time at the contact centre was suspended. The transcript of the day in question (8 December 2016) reveals that the reason – or the primary reason for the suspension of the supervised time at the contact centre was suspended because of the impact that the visits were having upon the mother’s health. I note in particular pages 15 and 17 of the transcript.
Accordingly I have come to the conclusion that an order for supervised time between the paternal grandmother and the children will not ameliorate the unacceptable risk of harm that has already been outlined.
The final order made by consent on 16 February 2016 already provides that the applicant is permitted to send letters, cards and gifts to the children – to an address nominated by the mother. As noted earlier in these reasons for judgment – the paternal grandmother has not yet availed herself of that Order.
Mr S spoke positively about the benefits to the children of maintaining some form of contact with the paternal family – even by the use of photographs, DVDs and home movies. These aspects have already been referred to in these reasons for judgment and they are reiterated now because Mr S emphasised that the children will benefit from having some link to their father’s family. In particular this will assist the children in forming and developing their own sense of identity.
It is important to reiterate these aspects of Mr S’s evidence at this stage – because it really forms part of a consideration of ameliorating the risk to the children – but nonetheless allowing some form of link or communication in a limited way between the paternal grandmother and the children.
In relation to the visits by the children with the paternal grandmother at the contact centre during 2016 – I agree with the submission on behalf of the Independent Children’s Lawyer that the “fun” that the children had with the paternal grandmother should only be taken at face value. It is not evidence that the children have a meaningful relationship with the paternal grandmother. The children spent time with a woman – not dissimilar to a babysitter – and went on excursions that most children would enjoy.
Furthermore, when the children showed signs of being reluctant to attend visits or were mean or unkind to the paternal grandmother or were non-responsive to boundary setting – this appears to be evidence of the impact upon the children of the mother’s own anxieties. The children’s response to the mother’s anxiety and stress leading up to the scheduled visits was a matter referred to by Mr B in his report. It was also referred to by Dr V at paragraph (vi) on page 13 of his second report where he stated:
“(vi) If the Court were to find it was in (the) children’s best interests to have an ongoing relationship with the paternal grandmother, the mother would benefit greatly in my view from developing strategies and tools to protect the children from her significant anxieties and concerns about the paternal family. It would appear that the mother’s anxieties have either consciously or unconsciously impacted upon the children.”
I have come to the conclusion that the children only have a limited or superficial relationship with the paternal grandmother. Furthermore, the children have no relationship with the other members of the paternal family. In this regard I note the following evidence:
a)The children were very young at the time the father died;
b)The children had only spent limited time with the paternal family prior to the father’s death;
c)The children have spent a very limited amount of time with the paternal family since the father’s death;
d)The lack of memories articulated by the children to Mr S.
There is ample evidence from the mother (which I accept) of the deterioration in the children’s behaviour once supervised time at the contact centre commenced. I note the mother’s trial affidavit filed 21 July 2017 and paragraph 205 in particular. I also note paragraphs 273, 274, 287, 288 and 289 of the mother’s trial affidavit where she has set out the change in the children’s behaviours.
Section 60CC
Much of the discussion above relates to section 60CC(2)(b) – and the primary consideration that directs the Court to consider the need to protect children from physical or psychological harm from being subjected to, or expose to, abuse, neglect or family violence.
As to the first stated primary consideration section 60CC(2)(a) – namely the benefit to the children of having a meaningful relationship with both of the children’s parents – I agree with the submission made on behalf of the Independent Children’s Lawyer by Ms Christie of Counsel. The decision of Full Court of the Family Court of Australia in Donnell & Dovey [2009] FMCAfam 515, confines section 60CC(2)(a) to “parents” it does not include grandparents.
I note what was said by the Full Court of the Family Court of Australia in Donnell & Dovey (supra) at paragraph 92 as follows:
“The only attempt made in the legislation to assist in interpreting the meaning of the word “parent” is contained in s 4(1), which says that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. We therefore proceed on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to a child: Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [32]. See also Hort & Verran [2009] FamCAFC 214, per Coleman, O’Ryan and Strickland JJ at [84].”
Dr V made it clear that if the Court was to Order that the children spend time with the paternal grandmother then the mother would really need medication. That medication is known as SSRI as outlined earlier in these reasons for judgment. That medication has side effects and it is not appropriate for this Court to make an Order requiring the mother to take such medication. Furthermore, I have come to the conclusion that it is not unreasonable for the mother to decline to take such medication. Also, as noted earlier, even if a person does take such medication there is no guarantee that the medication will work.
As to the additional considerations in section 60CC(3) I note the following.
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Section 60CC(3)(a) relates to the views expressed by the children – but the children were very young and had very limited (if any) memories of their father – and the paternal family;
Section 60CC(3)(b) – the nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
Section 60CC(3)(b) – the children have a close and loving relationship with their mother. However, the children’s relationship with the mother is likely to be adversely affected if the Court was to make an Order that the children spend time with the paternal grandmother or any other members of the paternal family. The reasons for this conclusion are outlined above in these reasons for judgment and relate primarily to the mother’s health and the impact upon her ability to care for the children.
The children also have a good relationship with Mr K and their brother, A. The children also appear to get along well with Mr K’s son B, and Mr K’s youngest child C. The children, at this stage, do not seem to be seeing Mr K’s daughter – for the reasons stated above.
The children have no relationship with the extended Illingworth family. In relation to the paternal grandmother, the children only have a very limited relationship with her.
Section 60CC(3)(c), (ca), (e) relate only to a child’s “parents”.
In case I am wrong about that, the paternal grandmother has not, of course, been involved in any major long term issues relating to the children – because she has a very limited relationship with the children. The paternal grandmother has spent time with the children as ordered by the Court in a supervised context and communicated with the children on that occasion. But I do note that the paternal grandmother failed to communicate with the children by sending cards, gifts or letters in accordance with the final consent order made on 16 February 2016.
Because the paternal grandmother is not one of the children’s “parents” the paternal grandmother has no duty to maintain the children (note section 60CC(3)(ca).
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
If there were to be an Order made by the Court that the children spend – even supervised time – with the paternal grandmother then the likely effect on the children will be detrimental. This is because the mother’s anxiety will increase and impact upon her ability to care for the children. Furthermore, as already has been identified by, amongst others, Dr V, the mother’s anxiety impacts upon the children and their behaviour.
In the event that an Order is made that there be no time spent between the paternal grandmother and the children – then the mother’s symptoms of anxiety are likely to improve – leading to a more peaceful and stable home environment for the children.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
If the Court had been persuaded that there should be an Order for time with the paternal grandmother the practical difficulties and expenses could have been overcome. But for the reasons already stated there will be no such Order. It is not in the children’s best interests.
Section 60CC(3)(f) – the capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
The mother certainly has the capacity to provide for the emotional and intellectual needs of the children. This is provided these proceedings are ended and there is no order for time between the children and the paternal family.
Given the findings made by the Court as to the paternal grandmother’s lack of insight – I am less than convinced that the paternal grandmother has the capacity to provide for the emotional and intellectual needs of the children.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Given that the children’s father was Mr A – their sense of identity will be enhanced by having some knowledge of Mr A and some knowledge of his extended family. This was the point made by Mr S in his evidence. I do accept that evidence of Mr S and that explains why I will be making the Orders as sought by the Independent Children’s Lawyer whereby the paternal grandmother will be able to telephone the children for the purpose of wishing them a happy birthday and a happy Christmas. The mother will also be ordered to retain all of the letters, cards, gifts and other material received by the children from the applicant (in accordance with paragraph 3 of the final orders made by consent on 16 February 2016). Such a box is to be kept for each child in a location accessible to each child.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has an excellent attitude towards the children and has fully accepted the responsibilities of parenthood.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter.
I have already made references to the family violence perpetrated by the father of the children.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
If the Court were to make an Order that the children should spend time with the paternal grandmother – whether supervised or unsupervised – then I am certain that would lead to the institution of further proceedings in this case. The evidence is overwhelming in that regard. The mother’s Anxiety Disorder with Panic Features will not disappear and it will not begin to improve if the Court makes an Order for time between the children and the paternal grandmother.
The mother was asked in cross examination by counsel on behalf of the Independent Children’s Lawyer (Ms Christie) for her view in relation to the possibility that the grandmother might be able to telephone the children for their birthdays and at Christmas. The mother said that, basically, that she could “probably” handle such an order. On the balance of probabilities therefore, I have come to the conclusion that the mother could “handle” such an order. It may be that the best way to facilitate that situation is for the paternal grandmother Mr K’s telephone at a designated time so that it is Mr K who facilitates the phone call between the paternal grandmother and the children.
The Order for telephone time (which will essentially only be three telephone calls each year) does, in my view, ameliorate the risk of harm to the children. That main risk of harm being, of course, the mother’s anxiety. I am sure that the mother – with the assistance of Mr K will be able to organise appropriate measures at the time of the three telephone calls each year. They will not take place on the children’s actual birthdays and nor will they take place on Christmas day. I consider that the Independent Children’s Lawyer has proposed a sensible and a sensitive Order in this regard. It allows the paternal grandmother to have some, albeit extremely limited, contact with the children. It ameliorates the risk of harm to the children (as already stated). It will allow the children to at least have some knowledge as to their paternal identity and heritage. It may be that the mother decides to take a walk at the time of each telephone call and leaves it to Mr K to facilitate those calls on behalf of the children. That is a matter for the mother and Mr K. I do not consider that the Order for telephone time is likely to lead to the institution of further proceedings.
Conclusion
Sections 61DA and 65DAA are not relevant in this case. There is no need to even consider those sections. The parties have already agreed by final order made on 16 February 2016 that the mother would have sole parental responsibility for the children.
To a very great extent this case is about the risk of harm to the children and whether that risk of harm is unacceptable. In a decision entitled Harridge & Harridge [2010] FamCA 445, Murphy J “examined the nature of unacceptable risk”. His Honour quoted an earlier Full Court decision of N & S and the Separate Representative (1996) FLC 92-655. At 82,713-4 Fogarty J stated in that case:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.”
In Harridge & Harridge (supra) Murphy J also referred to a decision of Napier v Hepburn (2006) 36 Fam LR 395 where Warnick J stated:
“[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to be provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change”.
Murphy J then stated:
“….The reference by Warnick J to the process leading to the result is, in my respectful view, extremely important. I sought to emphasise it, albeit in slightly different terms, in the course of the current proceedings. Specifically, I consider it extremely important in a parenting case such as this to identify the nature of the risk or risks said to be present and how, and the extent to which, the identified risk or risks are said to impact on orders reflecting best interests.”
His Honour also provided a helpful quotation from a paper prepared by an English author, B. Mehendra - ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569. The English author stated:
“Risk assessment in any situation involves, in essence, the asking of the following questions:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?”
Any discussion of unacceptable risk of harm in the context of Australian Family Law leads back to High Court’s decision in M v M (1988) 166 CLR 69. In Harridge & Harridge (supra) Murphy J has also helpfully quoted from a paper prepared by the Honourable John Fogarty AM (20 AJFL 249). Mr Fogarty notated in relation to the concept of unacceptable risk:
“…unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)”
The harmful outcome potentially present in the current case has been referred to at length in these reason for judgment. The Court ordered supervised time in February 2016. Supervised time between the children and the paternal grandmother occurred on six occasions. The evidence discloses (including the evidence of the mother, the mother’s psychologist (Ms J), another psychologist Mr B and Dr V) that – as a result of the children spending time supervised at a contact centre with the paternal grandmother – the mother’s symptoms of anxiety were exacerbated and detrimentally impacted on her ability or capacity to care for the children. The mother’s anxious reaction to the Court ordered supervised contact also directly had a negative impact upon the children and their own behaviour.
If the Court were to order any sort of ongoing time with the paternal grandmother (supervised or unsupervised), the harmful outcomes already identified would continue indefinitely. The risks are therefore probable in the short, medium and long term. The only factor that would decrease the risk is that there be no order for time between the children and the paternal grandmother. I find that the mother’s distress is so overwhelming that there are no measures available whose deployment could mitigate the risk of harm to the children – in the event that the Court was minded to order that the children spend any kind of time with the paternal grandmother.
There were other risks identified in this case. That is to say other harmful outcomes that were potentially present. One particular risk was the risk that if time with the paternal grandmother had been ordered on an unsupervised basis, that she could, potentially, bring the children into contact with the paternal grandfather. The paternal grandmother had suggested an Order that there be no time, no contact whatsoever between the children and the paternal grandfather. I have referred (in some detail) earlier in these reasons for judgment to the convictions recorded against the paternal grandfather and to the setting aside of those convictions by the Court of Appeal in Queensland. Risk factors nonetheless subsist in relation to the paternal grandfather because he did not give evidence in this case and this Court had no opportunity to assess the risk factors in accordance with the appropriate standard of proof for a parenting case in the Family Law jurisdiction.
One potential risk in relation to Order for unsupervised time between the children and the paternal grandmother is the risk that the paternal grandmother would not comply with an Order prohibiting her from allowing the children to be brought into contact with the paternal grandfather. My reasons for concluding that there is a risk that that would occur are as follows:
a)The paternal grandmother does not believe that the paternal grandfather committed the child sex offences against the paternal grandmother’s siblings;
b)The paternal grandmother requested that the paternal cousins be permitted to visit the children at the contact centre – notwithstanding an Order to the effect that only the paternal grandmother was to attend. There was no Order permitting the attendance of any other member of the paternal family;
c)In paragraph 10 of the Orders made by the Court on 16 February 2016 a very clear condition was set down by the Court. As a condition of the paternal grandmother’s having the benefit of parenting orders (as outlined in the Order dated 16 February 2016) the paternal grandmother was to forthwith make arrangements to commence psychotherapy or counselling with a duly qualified therapist to assist her with a number of detailed complex emotions etc. Incredibly, the paternal grandmother failed to comply with that condition. If the paternal grandmother did comply with that condition – she surely would have presented evidence of that to the Court. She did not do so.
I have come to the conclusion if the Court had been persuaded (which it has not) that there should be Order for the paternal grandmother to spend unsupervised time with the children – then the Court could not be confident that the paternal grandmother would refrain from bringing the children into contact with the paternal grandfather.
In many respects these comments are probably superfluous – given the clear findings already made by the Court in relation to the major form of risk. I am really referring to these issues for completeness. It should be noted that the risk of the children being brought into contact with the paternal grandfather could be eliminated by an Order for supervised time with the paternal grandmother at a contact centre – but (and this is where these comments become circular) the Court is not minded to Order any contact with the paternal grandmother – for the reasons stated.
The only form of contact with the children, therefore, will be permitting the paternal grandmother to send gifts, cards and letters as outlined in the previously agreed final consent Orders dated 16 February 2016. Further, the paternal grandmother will be permitted to make the telephone calls as suggested by the Independent Children’s Lawyer (and referred to earlier in these reasons for judgment) as follows –
“That the applicant be at liberty to telephone the children for the purpose of wishing them a happy birthday and a happy Christmas. Such telephone calls shall take place between 6:00pm and 7:00pm Queensland time on (omitted) in each year.”
I also consider that the Order in paragraph 8 of the Independent Children’s Lawyers draft orders is also appropriate that injunctions shall issue and restraints shall apply in the following terms:
“8.1 the Applicant be restrained from discussing any issues in dispute between the Applicant and the Mother and is further restrained from discussing the circumstances of the death of the Father with or in the presence of the children;
8.2 the Applicant shall not denigrate or insult the Mother of her family in the presence of or hearing of the children;
8.3 the Mother shall not denigrate or insult the Applicant or her family in the presence of or hearing of the children; and
8.4 that the Applicant be restrained from and an injunction herby issue restraining her from bringing the children into direct or indirect contact or communication with the Paternal Grandfather, Mr G.”
I did not understand there to be any opposition to these restraints proposed by the Independent Children’s Lawyer. The notation proposed is also appropriate.
For the sake of completeness, I call upon the Independent Children’s Lawyer to forward to the Court draft final orders to reflect these reasons for judgment. Orders, generally in the terms of the draft provided to the Court on 1 September 2017 will be appropriate – but upon reading these reasons for judgment, the Independent Children’s Lawyer may wish to include further Orders – or seek the Court’s clarification on certain matters.
I certify that the preceding one hundred and eighty seven (187) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 30 November 2017
Key Legal Topics
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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Expert Evidence
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Remedies
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Judicial Review
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