JEFFREYS & BOSNIC

[2015] FamCA 547

FAMILY COURT OF AUSTRALIA

JEFFREYS & BOSNIC [2015] FamCA 547

FAMILY LAW – PARENTING.  Allegation that child at risk in mother’s care because of her mental health – Unacceptable risk established – Both litigants unrepresented and primary sources of evidence from “Magellan” report and single expert psychiatrist – Orders made for mother’s time to be supervised.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286
M and M (1998) 166 CLR 69

APPLICANT: Ms Jeffreys

RESPONDENT: Mr Bosnic

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 3746 of 2009

DATE DELIVERED: 17 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 & 14 July 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That all extant parenting orders involving the parties are discharged.

2. That the father have sole parental responsibility for B born … 2008.

3. That when considering any major long term decision concerning the child, save as to emergencies, the father provide to the mother 30 days written notice of his proposal inviting her contribution towards such decision.

4. That after making any major long term decision concerning the child, the father advise the mother in writing of his decision.

5. That the child live with the father.

6. That the child spend time with the mother as follows:

   (a)Each alternate Sunday from 10.00am to 5.00pm commencing 26 July 2015; and

   (b)At such other times as the mother and father agree.

7. That paragraph 6 of these orders is conditional upon the following:

   (a)All such time referred to therein being supervised by either Mr C Jeffreys or Ms D Jeffreys;

   (b)Arrangements as to time and place for the handover of the child and his return, are agreed between the father and the said supervisors prior to the commencement of each period of contact; and

   (c)The supervisors signing and returning to the father an undertaking to the Court and to the father in the terms attached to these orders that they will faithfully carry out the responsibilities of any supervision they undertake.

8. BY CONSENT OF BOTH PARTIES, the mother is restrained from taking illicit drugs in any period 24 hours prior to spending time with the child or consuming them during the time she spends with him.

9. BY CONSENT, the mother and the father each be restrained by injunction from denigrating the other in the presence of the child or permitting any other person to do so.

10. That the Independent Children’s Lawyer is discharged from the proceedings.

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. That all outstanding applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3746 of 2009

Ms Jeffreys

Applicant

And

Mr Bosnic

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Ms Jeffreys (“the mother”) and Mr Bosnic (“the father”) have not lived together but it is common ground that the child B, born in 2008, is the only child of their brief relationship.  These parenting proceedings arise out of that relationship.  The important issue to be determined is what time the child should spend with his mother and whether that time should be supervised and if so, by whom. 

2. In 2009, proceedings between the parties began in the Federal Magistrates Court at Dandenong.  It would seem that those proceedings occurred because the mother was involuntarily admitted to psychiatric care and the local police then put the child in the father’s care.  Since then, the child has predominantly, but not entirely, lived with his father.  But, it must equally be noted that the child has been the focus of parenting litigation ever since 2009 through innumerable hearings.  This is just another one.  Whatever may have caused the litigation in the past, the fundamental concern underlying the dispute relates to the mother’s mental health.  No similar concern arises about the father’s care of the child. 

3. The paucity of evidence and the lack of assistance from the parties in this case arose, in part, from their lack of legal representation.  Having regard to their respective financial positions and the amount of assistance they have had in the past from the legal community, the absence of lawyers was unsurprising.  The parties are unsophisticated and each filed a handwritten affidavit which provided very little helpful information.  Apart from a brief mention of that material below, it has little relevance.

4. The Court had the benefit of an Independent Children’s Lawyer and a comprehensive family report.  Other evidence was provided in the form of psychiatric evidence from a single expert witness, Dr E, who is a psychiatrist.  In addition, despite there being no affidavit, the Court heard from the mother’s adult daughter at the mother’s request.  Other people upon whom the mother wanted to rely but whose evidence was not in written form, were not permitted for the reasons I gave at the time.

5. Despite the paucity of evidence, it is abundantly clear that the child needs both certainty of routine and protection from the exposure to harm.  He is getting the security that he needs from his father and any significant absence from his father, at this time, would not be in his best interests according to the evidence of the family consultant.  That proposition was not really challenged by the mother even if she did disagree with it.

6. The major issue in this case therefore is the protection of the child from the exposure to harm entirely surrounding the mother.

7. For the reasons set out below, I am satisfied there is an unacceptable risk of physical and/or emotional harm to the child if he was to spend unsupervised time with his mother.  I have no doubt the mother loves the child dearly and would wish to have no restrictions on her relationship with him but I am satisfied on the evidence of Dr E, the father’s evidence as to the incident referred to below which occurred in January 2015 and the evidence of the family consultant, that the mother’s behaviour which I accept is exacerbated by her mental health problems, puts the child at risk.

Dr E and Dr F

1. There has been a significant dispute between the parties about the mother’s mental health situation.  That needs explanation.  The Court had the benefit of evidence obtained from a single expert witness.  Psychiatrist Dr E found the mother’s symptoms consistent with schizoaffective disorder.  In his oral evidence, Dr E said that the mother had a bipolar disorder.  The mother does not dispute that she has problems which might relate to her concentration and understanding of what people are saying.  She refers constantly to an injury when she was 17 years of age.  She says she has an acquired brain injury.  She has been seen by a number of professionals including psychiatrists but just exactly what their views are remains uncertain because the evidence was not provided.  What was provided by the mother was a report prepared by a psychiatrist Dr F. 

2. The mother saw Dr F in April and told the family consultant that she had a report.  There is little doubt that the mother was of the view that this report disputed the views of Dr E.  When the mother was challenged about why she had not produced the psychiatrist’s report, she said that she did not want the father and his family to see it.  Counsel for the Independent Children’s Lawyer called upon the mother to produce it and the following morning she produced three pages on a typed letterhead.  It was unsigned and I am not convinced that there was only three pages.  I allowed it to be tendered in evidence by the mother on the basis that it established that, as a result of the call by the father in January 2015 for her to obtain a psychiatric assessment, she had done so.  Dr E was provided with a copy of that report and when he was cross-examined, he made clear that he did not agree that it could be given much weight.  That was because of the fact that Dr F was given little information for the foundation of an opinion and he had to rely entirely on what the mother told him.  The mother had had ample time to make arrangements with Dr F to give evidence but she failed to do so.

3. It is also important to observe that the report of Dr F was addressed to the mother’s general medical practitioner from whom no evidence was also called.  It began by making reference to a particular Medicare item which Dr E subsequently explained was the basis upon which the patient was charged.  What Dr F was doing was providing the mother’s general practitioner with advice about his diagnosis, the mother’s prognosis and any treatment.  Dr F referred to the fact that the mother wanted to obtain the disability support pension and in his view, she should have that.  Dr F described the mother in his interview and Dr E thought that Dr F’s observation confirmed his view that the mother suffered from a bipolar disorder.  Dr F did not say the mother did not suffer from bipolar affective disorder but rather that he doubted she did.  He thought that to make any concluded opinion, it would be of interest to have access to the G Hospital and associated outpatient clinic material relating to the mother’s presentation and treatment presumably at the time that the assessment was originally made.  He also thought that she would not be assisted by psychotropic medication.  Dr E strongly disagreed and felt that that was necessary. 

The evidence

1. I have the advantage of two affidavits attached to which were reports in 2013 and 2014 by Dr E in which he read significant material and also observed the mother.  Dr F’s view was limited to his observations on one day.  Dr E was cross-examined on his opinion and did not alter his stance.  The Court did not have the advantage of a similar testing of the evidence of Dr F.  In all the circumstances, there is no reason for me to doubt the accuracy of the evidence of Dr E and accordingly I accept it.

2. On the basis of that finding, it is clear that the mother does have some form of mental health problem which is currently not being treated by any medication.  The mother said that she had allergic reactions to medication and was therefore reluctant to use it.  She put that specifically to Dr E and his response was that it was a matter that needed to be balanced.  I understood him to mean that the mother’s reactions to medication were not insurmountable.

3. In his written report, Dr F described the mother as euthymic and that she gave lengthy answers to questions in a rapid way and was commonly off the point of questions asked.  Dr E had the benefit of significant background material and was therefore able to know what to look for in relation to consistencies with presentation.  In 2013, he saw her as disorganised in her behaviour, her affect was irritable and elevated and her speech pressured at times.  Despite that, there was no clear formal thought disorder.  All of the observations of Dr E and indeed of Dr F, were consistent with what was observed in the courtroom.

4. In my view, it is safe for the Court to conclude that the mother does have a mental health problem which is currently untreated.  The question is whether or not that mental health problem explains the history of this unfortunate litigation.  I turn then to background material.  As I earlier observed, the evidence provided by the parties was sparse.  In this case, the evidence has therefore come largely from three sources.  They were, the Department of Human Services, Dr E and the family consultant.

5. The family consultant researched the whole of the court file as well as interviewed both the mother and the father.  Notwithstanding there was no affidavit material from the mother’s daughters who are adults, she interviewed them as well.  In her evidence, the family consultant confirmed that despite having read all of the voluminous material in the court file, she formed her opinion based upon her observations on the day.  The family consultant was not originally required for attendance but the mother changed her mind and accordingly, the evidence was called and the family consultant was cross-examined.  There were some issues associated with the incident in January 2015 (to which I shall return) which may have been inaccurately recorded by the family consultant but in my view, they do not affect the outcome of these proceedings. 

6. Pursuant to s 62G(8) of the Family Law Act 1975 (Cth) (“the Act”), a court may receive a report from a family consultant into evidence. Before the family consultant gave evidence, I asked the parties about their positions as to the expertise of the witness. The mother said she did not accept the witness’ expertise. Having looked at her experience and qualifications and the opinions she gave, I am satisfied she was appropriately qualified and indeed, formed those opinions on the appropriate evidence.

7. In this case, having regard to the relevance of the matters canvassed in the report as to the care, welfare and development of the child and the paucity of the evidence from the mother and the father as earlier indicated, I admitted the family report dated 5 June 2015 into evidence. 

8. The second source of the Court’s evidence came from a “Magellan report” compiled by the Department of Human Services in September 2014. When the case was transferred by the Federal Circuit Court, a registrar made an order for the Department to file such a report. The evidence of that report was admitted because of s 69ZW(5) of the Act.

9. The third source of information was that of Dr E and there is little more that I need say about that.

The litigation background

1. The history of what has happened to the child in the context of his mother’s behaviour can be seen by tracking through the court orders since 2009.  It would not be unreasonable to say that the plethora of proceedings has come about because parenting arrangements under the various orders (many of which were ironically made by consent of both parties) broke down. 

2. In December 2009, the child, then aged just under one, was ordered to live with the father and to spend “supervised” time with the mother at the maternal grandmother’s home for two hours on three occasions per week.

3. In March 2010, the mother’s time was increased to four occasions per week but still supervised by the maternal grandmother.  That order was one to which both mother and father consented. 

4. In June 2010, the March 2010 order was, more or less, repeated. 

5. On 27 October 2010, and with both mother and father represented by counsel, consent orders were made for the child to live with the mother and for the father to spend time with him on a limited basis.  This was really the only time that the mother has had a significant role in the child’ life in terms of care.  Whilst that order seems to have been underpinned by reference to the mother attending her general medical practitioner and a named psychiatrist, there was no requirement for the mother’s time to be supervised.  One might be forgiven for concluding that all was well between the mother and the father because the order required them to “review” the parenting arrangements before the child started school and for them to attend “mediation”.  It has always been the mother’s case that she suffered an acquired brain injury and until the end of 2010, it was well known that the mother was attending psychiatric professionals.  There is also little doubt that during that period of time, the Department of Human Services was involved particularly with the mother.  The Department was investigating violence in the mother’s household and also her relationship with the father but there were also concerns expressed about the mother’s mental health.  Thus, the consent orders in late 2010 might have raised the eyebrow of the Court had an inquiry been made a bit more carefully as to the nature of the consent orders.  In any event, the prospect of a mediated result was also then a forlorn hope as it is now and will be in the future between the parties.

6. Also in the 2010 orders, the parties agreed to equal shared parental responsibility.  The father now seeks to discharge that order despite having earlier consented to it.  Nothing in the evidence suggests there was ever a prospect of some form of agreement about parenting decisions between these parties.

7. The 2010 orders continued for about two years.  In October 2012, those orders were discharged by consent of both mother and father when they were represented by counsel.  These orders were interim arrangements only intended for a month but whatever their basis, the facts were sufficient for the mother to agree to change the living arrangements for the child.  the child then went back to the father and the mother’s time was reduced to one overnight per fortnight and two other periods of four hours.  Supervision was not reinstated but the following words of the orders are prescient:

   That the time the mother spends with the child be subject to the (the mother’s adult daughter) being in general attendance.

   It must also be said that the mother required it to be noted that she denied the necessity for such an order. 

8. Notwithstanding the parties had equal shared parental responsibility, they then agreed that they needed orders that required the handover of the child to be between the mother’s adult daughter and the father.  They added the following words to the order:

   That both parties be restrained by injunction from denigrating the other within the presence or hearing of the child.

   Ironically, the parties still need that order and have agreed that I should make it by their consent.

9. Thus, in late 2012, the child went back to live with the father and the mother’s time, on any view, was restricted.  One must ask what gave rise to that change.  The mother’s and father’s evidence was unsurprisingly silent but the Department of Human Services reported that there were issues associated with the mother’s mental health “deteriorating” but that too seemed to come to nothing.  After the orders were made in October 2010, the Department received further “notifications” but their investigations showed no concern about the child being in the father’s care.  That 2012 order seems to have at least set the current routine for the child living with his father.

10. In November 2012, that is after the month had passed by, the mother’s time was, by agreement, altered to two nights per week but without any supervision.  The parties attended court hearings in February 2013 and June 2013 but no change was made to the arrangements until a minimal alteration occurred in September 2013.  Throughout this time, the Department of Human Services continued its involvement expressing no concern about the child in the father’s care but constantly questioning the mother’s capacity even for the limited time that she had the care of the child.

11. In February 2014, the Federal Circuit Court ordered in a contested interim hearing that the child spend time with the mother during each alternate weekend from Friday after school until the commencement of school on the Monday morning and for a further two nights during the middle of the alternate week.  Thus, the child was cared for by the mother for two nights per week.

1. In June 2014, in anticipation of a final hearing where, it would seem, the mother was seeking for the child to be “returned” to live with her, an allegation of sexual abuse was made against her.  That precipitated the transfer of the proceedings to this Court.

2. It is necessary to note the investigation and outcome of that allegation.  Again, the only evidence of substance that the Court has, comes from the report of the Department of Human Services.  Counsel for the Independent Children’s Lawyer indicated in the proceedings that events had been overtaken by what happened in January 2015.  The father did not pursue the sexual abuse issue in any form of evidence nor did he put to the mother any questions about her behaviour such that it could be concluded that she had acted inappropriately.  The mother made very clear that she denied having been involved in any wrongdoing with the child. 

3. With that background, it must be said that the allegation arose because the child said that his mother was “shaking” his penis “really hard” and he yelled at her to stop.  There is no doubt on the evidence that the child’ penis was injured and examined by a doctor.  A subsequent medical examination reported to the Department of Human Services that the injury could have occurred in a number of different ways.  The Department of Human Services and the police became involved.  The father stopped the mother’s contact which was a decision supported by the State authorities.  The mother denied to police any wrongdoing but the Department of Human Services could not interview her properly because of her “erratic” presentation.  the child had claimed that his adult sister observed what had happened and had told the mother to stop doing what she was doing.  Sadly, the mother did not call any evidence from her daughter in respect of that and in the end it may not make any difference.  Certainly, because of that evidence and the lack of perceived objectivity of the daughters considered by the family consultant, it was suggested in the family report that the adult daughters ought not be supervisors of the child.  I do not intend to follow that recommendation in this case for reasons that follow.

4. When the Department of Human Services evaluated all of the evidence that they had, they concluded that the allegation that the child had made was “substantiated”.  It could not be suggested on any evidence that the father had “coached” the child and there is no suggestion that the child has equivocated about how the incident occurred.

5. Consequent upon receiving the Department of Human Services’ report, in September 2014, the mother’s time was set at three hours on Tuesdays and Fridays of each week but under supervision along with nine hours on each alternate Sunday also supervised.  The Senior Registrar did not have a problem about the objectivity of one of the daughters of the mother because she was listed as one of the supervisors.

The pathway to a final hearing

1. It was in the context of that material, this case was set for trial as a “Magellan” matter.  It came before me on 12 January 2015 and I had a discussion with both parties as well as counsel for the Independent Children’s Lawyer about the necessity to prepare material and to define the issues in dispute.  Three days later, everything went off the rails. 

2. What became known as the January incident, was to some extent disputed by the mother but in my view, could hardly be controversial.  the child went to spend time with his mother at his maternal grandmother’s home where Mr C Jeffreys, another of the supervisors named in the Senior Registrar’s order, was also present.  During that morning, the mother left the home taking the child with her and as a result of a telephone call to the father by the maternal grandmother, the father’s parents went and collected the child.  The controversy was what occurred in that intervening period. 

3. It was the mother’s version that when she arrived at the grandmother’s home, the maternal grandmother was making hotdogs.  She said the grandmother had emphysema and “tummy bugs”.  The mother did not want these germs to infect the child and an argument ensued leading to her remove the child.  It was her evidence that the father was notified quickly.  The father’s evidence was quite the contrary.  He said a number of hours had gone by before the family contacted him.  More importantly, when the family consultant examined the situation, she described the mother referring to the maternal grandmother “breathing” on her hotdog to give her germs. 

4. Because there was a possibility that, with the mother’s rapid speech and disorganised thought patterns, the family consultant had misunderstood the mother, I queried her about it and she pointed to her notes indicating that her report about the hotdogs was correct.  What was not understood by anyone and remains unclear, is what was the nature and extent of the argument between the mother and maternal grandmother.  At one point in her evidence, the mother said that because of the arguments that were going on, she decided to remove the child from that environment.  Whatever exactly occurred, there can be no dispute that neither of the supervisors present that day had any control over the mother to prevent her from leaving with the child.  I doubt they were aware the mother had taken the child for some time.

5. When the paternal grandparents went to collect the child, the father described what they told him.  It was that of the child running up and down on the footpath whilst the mother was sitting with a bottle inside a brown paper bag and drinking from it.  There was considerable controversy as to whether the bottle was a beer bottle or a wine bottle or some other sort of bottle because the family consultant recorded it as beer.  I am satisfied after questioning the family consultant that the mother’s version is right that it was simply a bottle.  There is no dispute that the bottle was in a brown paper bag and whilst my suspicions might arise that such a repository would point to alcohol, I am not in a position to make that finding.

6. It is clear that when the paternal grandparents arrived, the mother got up without saying anything to the child and walked off whereupon she apparently went to a bottle shop and obtained beer.  She explained that she was stressed and needed the drink. 

7. Unfortunately, the evidence of the observations of what happened were not in the form of an affidavit by the grandparents.  The position described by the mother was equally problematic because of her disorganised behaviour and pressured way of talking with the family consultant.  According to the father’s evidence, the child recently told him that his mother had taken him into the bottle shop when she bought the beer.  In my view it would be dangerous to draw an inference of that nature having regard to the time that had elapsed between when that statement was made to the father and the January incident occurred.

8. In her discussions with the mother, the family consultant pointed to the obvious that her time with the child was supposed to have been supervised.  The mother told the family consultant that had anything gone wrong, resort could have been had to the bus driver on a bus that she had caught which also had security cameras and that the same should be said about when she went to a shopping centre, because there was CCTV as well.  The family consultant’s report tends to suggest that the mother was saying that she was not unsupervised but I accept the mother’s version which is that she was saying that, in reality, had anybody wanted to check what had been happening, they could have resorted to those forms of assistance.  That however, misses the point.  The mother had no right to remove the child from the supervision and the supervisors should have been more diligent.  What is equally concerning is that at the bus stop, I accept that the child was virtually unattended by his mother.  Having regard to the nature of the busy road described by the father, that was dangerous.  Having regard also to the evidence of Dr E about the mother’s mental state, having the child in her care at a busy shopping centre or indeed on a bus, makes me distinctly uncomfortable.

9. In cross-examination of the mother, she was asked by counsel for the Independent Children’s Lawyer how the Court could be assured that such an incident would not happen again and that she would not just walk off if she had a problem with the supervisor.  The mother’s response was interesting.  She said that it would not happen again but then she added words to the effect “unless the bugs occurred again”.  That answer convinces me that what Dr E observed was correct.

10. Against all this uncertainty, I heard the evidence of the mother’s adult daughter Ms H.  Ms H has a young baby J.  Ms H was called to give evidence because, attached to the mother’s affidavit was a police statement by Ms H made in 2009 when she was 14 years of age.  When pressed about that statement, Ms H was unaware that her mother had attached it to her affidavit.  She was aware that she was being called to give evidence about an incident in that statement that occurred that she was said to have witnessed.  Despite being given ample opportunity to expand on exactly what happened, she gave a different version of what occurred in 2009.  Remarkably, the father who had denied even being interviewed by the police over the incident, conceded that there had been an incident but what he had done was to have thrown a sock at the mother.  In my view, the evidence about what happened is so unreliable that I should ignore it.  Importantly, it occurred in 2009 and there have been significant court attendances since that time. 

11. Ms H also gave evidence that her mother often cared for J.  Ms H told the family consultant in May 2015 that that was happening but reassured her that it was not overnight.  In her evidence, Ms H said that in the last two months, there had been four or five occasions where the mother had cared for J overnight.

12. Ms H said she had no problems about her mother’s capacity to care for a child.  I do not have the same confidence.  The father told the Court that the Department of Human Services were aware that this care for J was happening and had expressed concern.  It would appear that they had not intervened.

13. Notwithstanding the evidence of Ms H that her mother cares for J and that therefore I should conclude there was no risk to the child, all of the evidence of the experts would suggest otherwise.

14. The mother concentrated on the fact that the father was a violent man but she did not particularise any evidence that would enable me to make that finding.  Indeed, the Magellan report pointed to considerable arguments in the mother’s household between she and her then daughters which was of more concern.

15. I find in the circumstances that the mother cannot be trusted to restrain herself from doing what she wishes when it comes to the child.  The child is therefore at risk of physical harm.  The evidence of the Department’s substantiated allegation that the child was hurt in the mother’s care remains unexplained by the mother.  Whilst I understand that she denies that she was sexually inappropriate with the child, I do not have a plausible explanation from her as to how the child received the injury that he did.  The child has been consistent in his explanation that it involved his mother.  In those circumstances, it is appropriate to make a finding that absent some very careful supervision of the child in his mother’s care, there is an unacceptable risk that he will be physically harmed.

16. The Department of Human Services Magellan report also made reference to the arguments between the mother and her daughters.  They had to intervene.  At the conclusion of the evidence in this case and prior to the commencement of final addresses, the mother was said to have had an argument with her daughter and left the courtroom not to return.  There must be risk of emotional harm for the child in observing that sort of behaviour.  Again, I find that there is an unacceptable risk of harm and in this case, emotional harm to the child.

The mother’s affidavit

1. The mother’s evidence contained in her affidavit did nothing to persuade me that she was not the problem.  At paragraphs 6, 7, 8, 9 and 10 of her affidavit, she pointed to problems in the father’s household.  She observed that the child was isolated from his peers at school and was finding socialising difficult.  That was strongly disputed by the school report which showed otherwise.  More importantly, the mother was not seeking that the child live with her on a full-time basis and therefore I must accept that the father is the appropriate parent.  All of the independent reports of the Department of Human Services and the family consultant would indicate that there is no parenting problem from the father’s perspective.

2. In her affidavit also, the mother said that she had never placed the child at risk of any harm.  For reasons earlier articulated, I reject that.

The father’s affidavit

1. In his affidavit, the father set out the details of what had happened in the January incident rather than what had occurred to give rise to the allegation of sexual abuse.  The January incident really was reported to him as I have earlier indicated by his parents and by the mother’s family.  Since that time, notwithstanding there was an uncomfortable relationship between the father and the mother’s family, that seems to have now been resolved.  The father assured me that he would make arrangements with the mother’s family for time between them and the child if the mother was excluded from the arrangement.  He assured the Court that he was conscious of the need for the child to have a relationship with J.

The family consultant’s view

1. On a number of occasions, the mother indicated that she had not read the family report.  Notwithstanding she was encouraged certainly by counsel for the Independent Children’s Lawyer, she said she did not wish to do so.  I find that that is consistent with her behaviour which is no doubt attributable to her mental health.

2. Like Dr E, the family consultant also observed the mother’s presentation.  She described the mother as trailing off on an unrelated topic and needed constant prompting to remain on track when questioned.  That was obvious in the courtroom as well.  There is therefore every reason for me to accept that the family consultant’s observations were accurate.

3. The family consultant thought that the mother would prioritise her needs over those of the child and might struggle to organise the child or “orient him toward self-care and responsibility”.  She described the mother’s care arrangements as likely to be chaotic and ever-changing based upon what occurred at the interview at the court.  Even the daughters who were interviewed by the family consultant indicated that there were good days and bad days involving their mother’s mood fluctuations.  The family consultant opined that the child would be exposed to the mother’s fluctuating moods and erratic behaviour and as I have already indicated, that puts him at an unacceptable level of risk.

The risk test

1. It is important at this point to observe that in M and M (1998) 166 CLR 69, the High Court of Australia laid down the test to be applied in determining allegations relating to abuse or the risk of abuse of children. The Court observed that the resolution of an allegation, in that case of sexual abuse, was subservient and ancillary to the Court’s determination of what was in the best interests of the child. The consideration of the paramount issue should not be diverted from the supposed need to arrive at a definitive conclusion about the allegation of abuse. The focus of my attention therefore is on whether or not the child would be at risk.

The standard of proof

1. The determination of an issue such as that must be determined according to the balance of probabilities (Evidence Act1995 (Cth) s 140). In my view, on the balance of probabilities here, there is sufficient and consistent evidence to suggest that the child is at risk.

2. Before turning to the legal issues as to how orders should be determined, I observe that both parents as litigants without representation had the process explained to them and each seemed to understand.  Each also had the opportunity to call witnesses and to cross-examine where necessary.  In my view, the Court has received a very clear picture of what the problem is and how to solve it.

The name issue

1. A quick glance at the various orders in this case made over the last six years shows that the child has a variety of surnames.  The father’s position was that the child should simply have his surname and I am not at all clear on what the mother’s position was because she left the court prior to the opportunity to give a final address.  She was aware of the issue because it was raised in early discussions before the case actually began.  

2. This is not a case in which I am asked to determine the appropriate name for the child to use.  There were no welfare issues surrounding that point.  I have adopted the father’s surname on the basis that there is evidence in the form of a birth certificate indicating that although the child was originally recorded on his birth certificate using the mother’s surname with the details of the father as “unknown”, the parties had subsequently agreed to alter his surname to that of the father only. 

3. I do not intend therefore to do any more than record in the orders that from the Court’s perspective, the child will be known by his father’s surname. 

Injunctive orders

1. There have been problems in the past between the parties over alcohol and drugs.  The father asserts that the mother drinks and she concedes she does but does not become affected by it.  Having regard to the strict supervision that is to be imposed, alcohol injunctions are unnecessary.  The mother conceded that the Court should make an order in relation to illicit drugs.

2. The father and the Independent Children’s Lawyer also sought injunctive orders in relation to particular named males because of the father’s concern, supported by the Independent Children’s Lawyer, that the mother attended court with people they had never met.  There is no evidence as to why any particular individual should be kept away from the child in this case and because of my expressed views about the importance of the supervisors’ role, I think it is more appropriate that the contact between any such individual and the child be determined at the particular time by the supervisor obviously in consultation with the father.  In my view, there is no evidence to support such an injunction. 

3. Both parties agreed to injunctive orders in relation to mutual denigration.  I do not propose to do any more than put into place the orders that they seek.

The legal issues

1. Notwithstanding the findings made above, it is important to examine the statutory provisions to determine what, if any, orders should be made relating to the future parenting of the child.

2. Part VII of the Act sets out how that determination should be approached. Section 64B sets out that if an order is made, it may include most aspects of both decision-making for a child and matters associated with the care, welfare and development of a child.

3. As was pointed out in Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286, albeit in relation to interim arrangements rather than final hearings, the legislative intent in Part VII of the Act clearly intended that there be substantial involvement of both parents in the lives of children subject always to the need to protect the child from harm and it being in the best interests of the child. Having regard to the matters described above about the state of the mother’s mental health, the qualifications to substantial parental involvement by her in the life of the child apply here.

Parental responsibility

1. As can be seen, prior court orders saw the parties confirm the legal position about parents making major long-term issues associated with the child.  Each of them was to share that responsibility.  The father’s position is that sharing that responsibility has not worked and he therefore seeks sole parental responsibility.  His position was supported by the Independent Children’s Lawyer and to a very large degree by the family consultant.  The mother’s position was that she would never agree not to be involved in that decision-making process.  At the same time, she adamantly pointed out that she would not deal with the father and to the extent that some process had to be in place, mediation was her preferred option.  Even though there may be very few major decisions necessary for the child, there is little prospect of the parties agreeing about what should happen in the future and with the manifestation of the mental health issues of the mother as described by Dr E and indeed by her own psychiatrist Dr F, I have no confidence that any mediation would be successful.  In addition, the very concept of some form of process would simply encourage further dispute and possibly litigation.  In my view, it is time to put all that to an end.

2. Because parental responsibility is defined in the Act to mean all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children, it ought be obvious that if parents cannot agree on what should happen to their child and they have little chance of a successful negotiation, one party has to make that decision to avoid delay in such things as education and health. Delay causes frustration for the parents in not knowing which way their child’s future will go and creates confusion for various authorities such as school principals and doctors if arguments arise. In this case therefore it is important that one person have that parental responsibility to cover all of those matters. In my view, the only appropriate person in this case is the father.

3. Section 60B of the Act sets out the objects for the Court to ensure that the best interests of children are met. Those objects act as a philosophical guide in relation to any decision. The very clear principle from parliament can be seen in s 60B.

4. Section 61C provides that each parent has parental responsibility until such time as a court orders otherwise.  To remove that responsibility, an order must be specifically made (s 61B).  For the reasons that I have set out, an order should be made here.  In other words, the Court cannot safely leave any of the issues about the future of the child including the time he spends with each parent on such things as holidays and school involvement to the parents jointly.

5. Section 65DAC is a helpful guide to indicate whether there is a prospect that parents can fulfil some form of joint responsibility for the child.  That provision requires the parties not only to negotiate but to do so in good faith.  It is clear from the evidence in this case that neither party trusts the other and their respective experiences clearly point to the fact that a joint approach is not possible.  Having said that, as I have earlier observed, the parties did agree to various orders but there is no evidence before me to indicate that any of those orders worked successfully in terms of decision-making.  It may have been fortuitous because there were no arguments about schooling or indeed the health of the child in the past but those problems will most likely come up as he grows older.  The Court is asked by the father to exercise a discretion to grant an order for sole responsibility in his favour.  He seeks an order that for the rest of the childhood of the child, he have that responsibility.  I agree that it is a very serious interference with the rights of a parent, having regard to the clear intention of parliament, to remove them from that decision-making process but ultimately, the bests interests of the child must prevail.  On the balance of probabilities it is more likely that the father will make appropriate decisions for the child about major long-term issues.  I do not have a similar confidence in relation to the mother.  I say that because the evidence supports the conclusion that the mother is disorganised, frustrated when blocked from doing what she wants to do and, very vocal when she disagrees with someone who has an alternate opinion.  There is nothing wrong with dissenting parenting views but they must not adversely affect a child.  The incident in January 2015 is indicative of the mother’s behaviour and whilst she has indicated to the Court that she would not do that again, I am satisfied that she does not see the risk to the child that she caused.  I have no confidence that there would not be a repetition.

6. Having said all of that, s 61DA requires a court to apply a presumption of equal shared parental responsibility when making parenting orders.  That presumption, consistent with the parliament’s view that parents should share that responsibility, is that it is in the best interests of a child for the parents to have equal shared parental responsibility.  That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.

7. When this case began, the issue was whether or not the child had been sexually abused by the mother.   Notwithstanding the substantiation of risk to the child as found by the Department of Human Services, there is no other evidence put by the parents that would enable me to find that the child has been the subject of a sexual assault or that the mother involved the child in any sexual activity as a sexual object.  I find there is no basis to say that either parent has engaged in abuse of the child. 

8. The presumption also does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.  At its highest, the only evidence I am prepared to accept is that in 2009, the father threw a sock at the mother.  I do not accept the evidence of the mother in the form of the police statement signed by her daughter in 2009 having regard to the daughter’s own evidence.  Family violence for the purposes of these proceedings means conduct whether actual or threatened, relevantly here by the father towards the mother, where the mother reasonably feared for her personal wellbeing or safety.  There is not sufficient evidence in this case to enable me to make that finding.  Accordingly, the presumption is not rebutted on that basis.

9. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility.  For the reasons earlier set out, I find it would not be in the best interests of the child for the parents to have joint responsibility about education, religion and health.  I accept the submission of the Independent Children’s Lawyer however that the mother should be at least given the opportunity to have a say but that places the onus upon her to communicate her wishes.  She seemed very reluctant about that during the hearing.  It also places the onus on the father to communicate his need for a decision and for consultation and I am satisfied on the evidence that he would be prepared to do that.  If the mother does not desire consultation, the father should at least provide an indication as to what decisions he has made.  I formally find that the presumption should be rebutted.

10. I find on the evidence that it is proper to make an order that the father have sole parental responsibility for the child. 

11. I turn then to what time and what communication and under what circumstances, the child should have a relationship with his mother.

Parenting orders

1. Section 65D provides for the discretion in a court to do what it considers is right for the future of the child.  Section 61CA requires a court in deciding whether to make a particular parenting order to regard the best interests of the child as the paramount consideration.  Clearly it is not the only interest but it must predominate over questions of the interests of the parents.  To decide what is in the best interests of the child, the Court is required to consider the matters set out in s 60CC.  I turn to those now.

Section 60CC(2)

1. Parliament distinguished between primary and additional considerations and each of the two factors simply repeats the objectives set out earlier in the Act. Those 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.

   The Court is required to give greater weight to (b) than (a).

2. Thus, it is important for the child to have a relationship with his mother from which he obtains something meaningful; it is not just a question of the mother fulfilling her needs.  To her credit, in evidence, the mother said that she wanted to be able to assist the child in respect of schooling but I am unaware of her capacity to do so.  There is some evidence in the evidence of the experts to indicate that the mother excelled at school which she left at Year 11.  The mother provided no information about what role should could play.  She indicated she attends assemblies at the school at present but mostly for the purposes of “slipping” a dollar into the pocket of the child. 

3. The expert evidence indicates that the child knows who his mother is and should have his relationship cemented but the evidence of the family consultant was that the child also has a close and loving relationship with his father with whom he is settled.  I accept the father’s view supported by the family consultant, that any significant time away from his father will most likely unsettle him and want to return home.  I find therefore that there is a sound relationship between the child and his father but that the nature of the relationship between the child and his mother is more one of recognition.  There is support for that view from the evidence of the family consultant who observed the child somewhat ambivalent and non-responsive to his mother.  Thus, I am unable to say how a more meaningful relationship between the child and his mother could be further enhanced.

4. The more important of the two objectives in s 60CC(2) however is to protect the child from harm.  As I have already indicated, there is not sufficient evidence to enable me to find that he has been subjected to or exposed to abuse, neglect or family violence.

Additional considerations

Section 60CC(3)(a)

1. The family consultant indicated that the child was too young to have any weight given to his views but even if that was not right, he indicated a very clear attachment to his father.

Section 60CC(3)(b)

1. The nature of the relationship between the child and both parents has been already canvassed above.  The other persons in his life are the respective grandparents.  There is no evidence to suggest that the child does not benefit from time with those family members.  The paternal grandparents have fulfilled a very significant role in the life of the child because his father lives there with them.  There are other persons in his life as well including the mother’s extended family.  That includes her own adult daughters.  The nature of their relationship is somewhat unclear but in any event, the father had not indicated any desire to terminate or restrict those relationships and indeed assured the Court that he would foster them.  That includes the relationship between J and the child.

Section 60CC(3)(c), (ca), (d) and (e)

1. Whilst the mother wanted significant time in the life of the child, the father observed (and there is no real evidence about this) that despite orders, the mother has lost interest shortly thereafter.  The mother’s retort was that she had to work and she made clear from statements from the Bar Table that she is commencing some form of business.  I find the mother has not always taken the opportunity to spend time with the child although as she observed, she has been attending school assemblies where she has quickly seen the child.  I find the better view is that the child is ambivalent about his relationship with his mother which can be seen from the observations of the family consultant at the interview process.  In relation to decision-making, I find that the mother has not had a significant role in recent years because of a decision she has made not to communicate with the father.  The mother provides no financial assistance to the father for the child but I accept that her current financial circumstances as a pension recipient would make it difficult of her to do so in any event.  There was no evidence in relation to payments of child support and the mother’s only statement was that she is about to start a business so only time will tell.

2. In respect of separating the child from his mother for the purposes of the block holiday periods that she desired not to mention the block periods in each alternate week, leaving aside the question of the safety of the child, the family consultant was of the view that they were not appropriate because of the problems they would cause for the child in being separated from his father.  Whilst the family consultant indicated that there was a prospect in the future of building up block periods for holiday time, it was interesting that when that evidence was given, the mother was audibly heard to indicate that such an arrangement was inappropriate because she had to work.

3. There is otherwise no reason why regular contact cannot take place in this case albeit under supervision because the parties both live in the same area. 

Section 60CC(3)(f) and (i)

1. The Court is obliged to look at the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs as well as the attitude to the child and the responsibilities of parenthood demonstrated by the parents.  The findings above indicate that there is nothing that I could find in the evidence that would enable me to criticise the father about his parenting role and accordingly, I do find that the child is secure and well cared for.  There is insufficient evidence to be able to make a similar finding in respect of the mother.  What is clear however, on the basis of the evidence of Dr E and also that of the family consultant, is that the mother does not have the capacity to provide for the child certainly in the way his father can.  I rely on the evidence of both experts for that opinion.

2. The attitude that the mother adopted in January in absconding whilst she should have been under supervision and her recent statement that she would do it again if there was a “bug” problem, gives me little confidence that she understands the responsibilities of parenthood. 

Section 60CC(3)(j) and (k)

1. I have already dealt with the question of family violence.  Nothing in the evidence indicates that there are family violence orders or matters about which the Court should be concerned in this case. 

Section 60CC(3)(l)

1. As I earlier observed, this case has been in the system for almost six years.  That is the entire life of the child.  The regular attendances at court and the constant involvement of the Department of Human Services means that the public resources have gone into this family in a significant way.  Doing the best I can on the limited evidence in the Magellan report, all of the concern lies with the mother and in particular, her behaviour as a result of her mental health issues.  Dr E’s evidence about what the mother needs to fix that problem was quite clear.  The mother will resist following that advice.  On that basis, I can conclude that there is little prospect of her behavioural situation changing.  the child needs the security and certainty that there will no longer be any upheaval.  There is no explanation as to why the child was injured in 2012 that gave rise to the substantial investigation by the state authorities and the very proceedings here.  There is no justifiable explanation as to why the incident in January 2015 occurred.  All of those matters strongly point to the fact that the mother needs to be supervised for the protection of the child.  That protection also leads to the probability that there is less likely to be further litigation or intervention by state authorities.  In her various statements again not in evidence but from the Bar Table, the mother said that when she obtain sufficient resources, she would “appeal” the Court’s decision.  She has every right to take whatever steps she sees as necessary but in terms of the Court’s approach to stopping the litigation and giving the child an opportunity to settle into a life without interruption, my view is that is an appropriate case to make an order which is least likely to lead to the institution of further proceedings.  On the basis that the father’s continued care remains constant, it is hard to see how there is any likelihood of any investigation into his care in the future.  On the other hand, it is most unusual for the Court to make supervision orders of a long term nature.  Those sorts of orders usually concern contact centres which are artificial and very restrictive.  In the case of the child, the supervisors who are proposed by the orders I intend to make, are family members who are willing to try and encourage the relationship between the child and his mother.  It is therefore unlikely that the supervision will be so restrictive that it would need to be reconsidered by a court.  In addition, the father made clear that if the mother had undergone a psychiatric assessment and established to his satisfaction that there was no problem for the child, he would contemplate more time.  The ball is in the mother’s court. 

2. In my view, this is a case where these orders should be final and should not be reopened at the whim of the mother.  If indeed there are no change of circumstances on the mother’s part, she would face a significant hurdle in having the case reconsidered.

3. As to what time is appropriate, the father suggested seven hours on an alternate weekend but that is very much to be controlled by the capacity of the two supervisors who are so named.  They will determine the length of the mother’s time up to seven hours.  The father thought that the child would be able to handle that period of time.  There is no evidence to the contrary.  Accordingly that is the sort of order that should be made.

4. In relation to the supervisors, having regard to the confidence of the father in the two named persons, I propose to make orders in relation to them but on the basis that they sign a document clearly confirming that they understand what role they are undertaking.

5. In the circumstances, it is appropriate that the orders be made as set out at the start of these reasons.

I certify that the preceding Ninety Eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 July 2015.

Associate: 

Date:  17 July 2015