Klasson & Borisov

[2024] FedCFamC1F 636

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Klasson & Borisov [2024] FedCFamC1F 636  

File number(s):

SYC 2878 of 2022

Judgment of:

CHRISTIE J

Date of judgment:

18 September 2024

Catchwords:

FAMILY LAW – APPLICATION FOR REVIEW – EX TEMPORE – Where father seeking review of senior judicial registrar’s decision to order professionally supervised time graduating to non-professionally supervised time with the mother –– Where mother seeking sole parental responsibility and for the child to live with her – Where mother has a history of drug and alcohol misuse – Where mother receives psychological care – Consideration of risk to child – Application for review dismissed.   

Legislation:

Family Law Act 1975 (Cth) Pt VII

Cases cited:

B and B (1993) FLC 92–357; [1993] FamCA 143

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346

Harridge v Harridge [2010] FamCA 445

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

N and S and the Separate Representative (1996) FLC 92‑655; [1995] FamCA 139

SS & AH [2010] FamCAFC 13

Number of paragraphs:

44

Date of hearing:

18 September 2024

Place:

Sydney

Applicant:

Litigant in person

Counsel for the Respondent:

Mr Todd

Solicitor for the Respondent:

Long Saad Woodbridge Lawyers

Independent Children's Lawyer:

Mr Samuel, Brian Samuel & Associates

ORDERS

SYC 2878 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BORISOV

Applicant

AND:

MR KLASSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	18 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The father has leave to review the decision of the Senior Judicial Registrar of 2 August 2024 out of time.

2.The mother has leave to show a copy of the report of Dr B dated 11 September 2023 to her partner, Mr C.

3.Otherwise, the Application for Review filed 28 August 2024 is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym, Klasson & Borisov, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

CHRISTIE J:

1. This is an Application for Review of an interim parenting determination made by a Senior Judicial Registrar, and accordingly, will proceed as a hearing de novo.

2. The Application relates to the child X who was born in 2021 (“the child”).

3. An apprehended domestic violence order (“ADVO”) for the protection of the father against the mother was made for a period of 12 months in early 2022. There is no current ADVO.

4. The risk issues are:

   (1)The mother’s history of drug and alcohol use;

   (2)Mental health vulnerabilities of the mother; and

   (3)Each party has raised allegations about family violence.

5. As against those issues, I will also focus on the child’s developmental needs (including the need for a relationship with both parents if safe).

6. The father seeks orders which would see a return to the Orders which were made 11 January 2024. In broad terms those orders provided:

   ·The child live with the father;

   ·The child spend supervised time twice weekly for 2 hours with the mother (with some scope for a further session per fortnight) with a view to transitioning towards unsupervised time if there are no significant issues raised by the supervision service; and

   ·The mother to continue to attend sessions with her psychologist and psychiatrist and provide the father’s solicitor and Independent Children’s Lawyer (“ICL”) evidence of her attendance on an ongoing basis.

7. The mother seeks orders that the child live with her and that she have sole parental responsibility for decision-making.

8. The ICL seeks that the Review be dismissed, the effect of which would be to leave in place the Orders of 2 August 2024 (the subject of review) which provide in broad terms as follows:

   ·That the child have supervised time twice weekly with the mother at D Contact Centre and after six weeks, the mother spend supervised time with the child as supervised by her partner with the period of time increasing gradually; and

   ·That the mother continue attending sessions with her psychologist.

   THE LAW

9. The authorities make plain that the nature of an interim hearing is abridged. As a general rule (and in this case), evidence is untested by cross-examination, which limits the capacity of the court to make findings where the evidence is contested.

10. The framework provided by Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies as it would at a final hearing.

11. In deciding whether to make a parenting order which provides for professional supervision (or not), I must consider the child’s best interests as the paramount consideration.

12. The Full Court of the Family Court in Goode v Goode (2006) FLC 93-286 under the heading ‘How should interim proceedings be conducted?’ remains useful as a guide to the methodology to be applied (notwithstanding amendment to Part VII of the Act). The first four tasks identified at [82] remain apposite as follows:

    81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must still be followed.

    82.In an interim case that would involve the following:

    (a)identifying the competing proposals of the parties;

    (b)identifying the issues in dispute in the interim hearing;

    (c)identifying any agreed or uncontested relevant facts;

    (d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    …

13. In Banks & Banks (2015) FLC 93-637 the Full Court, discussing the Court’s approach to interim parenting cases, observed:

    48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial …

    49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.

    50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

    (Emphasis added)

14. In cases where there are allegations of risk, until the evidence can be tested, it is necessary to appreciate the impact on the child if allegations are subsequently found to be accurate, or indeed, inaccurate (SS & AH [2010] FamCAFC 13 at [41] and [100]).

15. The Court’s approach to the assessment of risk has recently been clarified by the decision in Isles & Nelissen (2022) FLC 94-092.

16. Having regard to those authorities, the focus in this case is on the question of what the objective evidence and unchallenged facts say about the question of safety.

17. There are some salient agreed facts:

    (a)The parties separated before the child’s birth;

    (b)The mother experienced a serious and sustained period of mental ill-health which commenced during her pregnancy;

    (c)Since the time of the making of a Recovery Order dated 13 May 2022 the child has lived with the father and had only supervised time with the mother;

    (d)The child enjoys supervised time with the mother and the reports are positive; and

    (e)The mother’s partner has signed a comprehensive undertaking relating to supervision.

    Safety: Mother’s mental health

18. The submissions of the ICL draw to the Court’s attention an excerpt from the single expert report of Dr B dated 11 September 2023 (at [660] – [690]) which relates to the mother’s presentation of symptoms and history:

    While [Ms Borisov] shows a history of emotional dysregulation with subsequent impulsive behaviours, I do not believe her to meet diagnostic criteria for a personality disorder. Specifically, [Ms Borisov] denied a longitudinal and pervasive pattern of instability in her interpersonal relationships, self-image and affect. Rather, [Ms Borisov] described her emotionally dysregulated behaviours as emerging during her relationship with [Mr Klasson] and being perpetuated by their ongoing conflict and the stress of the family court process.

    …

    [Ms Borisov] denied any significant history of mental illness prior to her relationship with [Mr Klasson]. However, since meeting [Mr Klasson], [Ms Borisov] has demonstrated a repeated pattern of emotional dysregulation and of utilising maladaptive coping mechanisms when distressed. [Ms Borisov]’s previously utilised maladaptive coping mechanisms include:

    -     Attempting to precipitate the miscarriage of her unborn child via alcohol use

    -     Self-medication with alcohol

    -     Attempting to end her life […]

    -     Impulsively cancelling future supervised visits with [X] and inappropriately contacting the independent children’s lawyer

    [Ms Borisov] attributes the above behaviours to the domestic violence she alleges [Mr Klasson] perpetrated towards her, the hormonal changes she experienced during her pregnancy, and the ongoing emotional and financial stress of the family court process.

    While [Ms Borisov]’s mental health is currently in a period of relative stability, there is a significant risk that [Ms Borisov] may return to her previously utilised maladaptive distress tolerance mechanisms if faced with a significant stressor.

19. The father points to the mother’s recent correspondence with his lawyer and the ICL as indicative of risk. I am unable to determine whether it is explicable by reason of her frustration and distrust of the father or whether it suggests she is unwell. There is nothing in the content which suggests the latter to a lay observer. It does speak to the lack of a working relationship between the parents but is not necessarily suggestive of risk per se. For that reason, I do not see it as a matter which suggests that the mother is misusing drugs or alcohol, threatening self‑harm or acting in a manner which could be described as a pattern of emotional dysregulation and maladaptive coping mechanisms. The highest the evidence suggests is that she did not appreciate that the parties’ child was too sick to spend time with her and saw it as another example of the father not supporting her relationship with the child.

20. The father submitted that the mother’s indefinite cancellations of supervised time are indicative of an ongoing risk posed by the mother’s mental health. I found the evidence in respect of this issue unclear. I accept that the time between January and April did not occur but it is less clear that this was as a result of the mother’s request that it be suspended. If in due course, it is established that the mother has unilaterally suspended time then this may be indicative of ill‑health but would not necessarily place the child at risk. The biggest risk which arises out of cancelled time is the child’s need for certainty, stability and dependability.

21. The father submitted that the mother’s report to the police station on the evening after the release of Dr B’s report is indicative of risk posed by the mother’s mental health. The reason for this submission is that the Computerised Operational Policing System records suggest that the mother was presenting to them without a current incident – leading to the conclusion that her attendance was promoted by receipt of the report and indicative of a maladaptive coping mechanism. Again, this attendance is not conclusive proof that the mother was unwell and is historic such that it may speak to whether X should live with the mother on an interim basis but does not inform the question of whether supervision should be professional.

22. One of the factors which is of concern is that the mother considers her mental health as “historical” and “irrelevant”. She said the same to me in submissions today. I accept that the mother’s characterisation of her mental health history as irrelevant raises a concern about whether she has insight and whether she has an appreciation of the risk of relapse.

23. One of the factors which is objectively knowable is how the time between the child and mother has been experienced by the child.

24. In Notation B of the Orders dated 11 January 2024 it said:

    B.      The Respondent father considers that there would be no need for continued professional supervision if the following occur:

    i.No significant issues are raised by the supervision service with respect to time spent between the child and the mother;

    ii.The mother provides to the father’s solicitor and the Independent Children’s Lawyer a short report no sooner than five months after the date of these Orders, confirming:

    a.Her attendance with her treater at least monthly;

    b.That she is undertaking a Dialectical Behavioural Therapy framework;

    c.Providing an opinion as to her current mental health; and setting out an ongoing treatment plan.

25. The ICL submitted, and I accept, that the mother has largely adhered to the framework in the notation.

26. The mother says she has been engaging in Dialectical Behavioural Therapy (“DBT”) twice monthly. The mother attached a report from a “counselling psychologist”, Ms E, and the report indicates fortnightly appointments scheduled for 2024. Ms E described symptoms presenting following the home invasion in April 2024 but resolving after about a week. Ms E describes implementing strategies from Cognitive Behavioural Therapy and DBT with the mother.

27. The fact of the mother’s full-time employment, while not conclusive evidence that she is well, is a factor which would support stability in her mental health.

28. The mother’s presentation at supervised time with the child is an objective indicator of her stability.

29. The report dated 25 August 2024 speaks of the mother’s engagement, patience and care and the child’s engagement, comfort and ease in his mother’s care. Similarly, the report of 8 September 2024 spoke of the mother’s enthusiastic interaction and affection and the child’s positive engagement and capacity to be comforted by his mother. The reports are positive and raise no concerns.

30. I accept that the above factors point to a continuation of the “remission” which Dr B identified. However, on the untested evidence, I am not satisfied that the mother has persuaded me that X should live with her on an interim basis. The father’s caution is appropriate given the seriousness of the mother’s past presentation.

    Benefit to the child of being able to have a relationship with the mother

31. The supervised contact reports demonstrate the enjoyment which the child derives from time spent with his mother. The father accepts that the time is valuable to and enjoyed by the child.

32. The father raises an issue about the child, from time-to-time, expressing reluctance to attend time with the mother. I accept this may be the case but rather than speaking to a lesser regime, it may also suggest that there ought to be a greater frequency in time between the child and the mother. This is not a matter upon which I could comfortably attach weight to the expression of reluctance – particularly given the positive reports of the time itself.

    Professional supervision or non-professional supervision?

33. The advantage of professional supervision in this case is that the father can have confidence that the supervisor is not partisan.

34. The father does not know the supervisor proposed by the mother and ICL, but this is not in of itself a disqualifying factor.

35. One advantage to the child is that non-professional supervision is a more natural setting. As he gets older, it does not send a message that there is some deficiency in his mother’s parenting. It is a family setting which is more flexible.

36. The recent reports demonstrate an ease in the flow of the time – including the child spending time with his mother, his mother’s partner and FaceTime with the maternal grandmother.

37. I place weight on the provision of an undertaking which has been explained by a legal practitioner.

38. It is useful to turn to the role and function of the supervision in light of the asserted risk through the lens of the questions posed by Murphy J in Harridge & Harridge [2010] FamCA 445, where his Honour after discussing N and S and the Separate Representative (1996) FLC 92-655, posed the following questions in relation to risk assessment (at [73]):

    (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?

39. The harmful outcome here is the possibility of the child being in the care of the mother while she is acutely unwell. That circumstance would plainly expose the child to unacceptable risk. At present, the evidence does not negate the possibility of the mother becoming unwell but does not support the conclusion that she is presently unwell. The period of time we are concerned with is the months between now and the final hearing. The factor which the evidence identifies as likely to increase the risk is exposure of the mother to stressors, the corollary being that removal of stressors is likely to decrease the risk. The father has submitted that the Court should not be minded to order time for the benefit of the mother’s health. As a general principle, this may be so, but three factors persuade me that the situation is somewhat more complicated than that:

    (1)The child derives benefit from the relationship with the mother and enjoys spending time with her and it follows that (provided it is safe), orders should facilitate and promote that time, including making it least burdensome and more natural;

    (2)The well-being of the child’s mother is important to the well-being of the child; and

    (3)Section 60CC(2)(ii) speaks of arrangements that promote the safety of each person who has care of the child. That plainly includes arrangements which support the safety of the mother.

1. It is useful to set out the often-cited passage from the Full Court decision in B and B (1993) FLC 92–357 at 79,780 – 79,781:

   3. Who should supervise the access?

   Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, “Supervising Visits between Parent and Child”, Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).) Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.

   For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.

2. It is significant that the case discussed above which the Full Court was considering was one about the risk of sexual abuse. The observations about a family member or partner’s scepticism of the allegations and consequent misgivings about the extent to which they may be vigilant are plainly relevant. Here, the concern is about significant ill-health (or the possibility of same) – a factor which is not amenable to being hidden in the manner of sexual abuse.

3. The Act itself does not set out a preference for or against familial supervision and each case will need to be decided on its own facts having regard to the nature of the risks and the appropriateness of the proposed supervisor. Here, the supervision is for a number of hours during the daytime and designed to protect against the matters which would be present if the mother were to experience another episode of ill-health.

4. With those factors in mind, it is my view that the present Orders strike a balance between the need to ensure the child’s safety and the benefit of the relationship between the mother and child to the child.

5. I will also permit release of Dr B’s report to the mother’s partner so that he will undertake the task fully informed. The focus is on whether the Orders ameliorate risk. The presence of another adult who understands the risk and is able to act if necessary is equal to the task of protection of the child in this case.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie.

Associate:

Dated:    19 September 2024