Krupi & Krupi (No 5)
[2023] FedCFamC2F 1526
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Krupi & Krupi (No 5) [2023] FedCFamC2F 1526
File number(s): CAC 664 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – PARENTING – Final Orders – One child 14 years of age – Where mother presents as unacceptable risk of serious psychological harm to the child – Where there are cogent reasons to justify indefinite supervision Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CG, 61DA, 65D, 65DAB, 102F, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.12
Cases cited: B and B (1993) FLC 92-357
Betros & Betros [2017] FamCAFC 90
Blinko & Blinko [2015] FamCAFC 146
Halloran & Keats [2023] FedCFamC1A 56
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Malburon v Waldlow [2013] FamCAFC 191
Krupi & Krupi (No 4) [2023] FedCFamC2F 147
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 120 Date of last submission/s: 24 November 2023 Date of hearing: 14 – 17 November 2023 Place: Canberra Counsel for the Applicant Mr Cameron Solicitor for the Applicant Hijazi Curran Cameron Lawyers Respondent Self-represented Counsel for the ICL Ms Harders Independent Children’s Lawyer Legal Aid ACT ORDERS
CAC 664 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KRUPI
Applicant
AND: MS KRUPI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All previous Orders made in these parenting proceedings be discharged except for any Orders with respect to costs.
Parental Responsibility
2.The Applicant Father shall have sole parental responsibility for the child X, born in 2009.
Living arrangements
3.X shall live with the Father.
Time between X and the Mother
4.Unless otherwise agreed between the parents in writing, X shall spend professionally supervised time with the Respondent Mother as follows:
(a)At C Child Contact Service in Canberra, or such other agreed professional supervision service should C Child Contact Service no longer be available;
(b)For two hours each alternate weekend at such times and on such days as can be accommodated by C Child Contact Service;
(c)With the parents to share the cost equally between them; and
(d)The supervision service is permitted to be provided with a copy of these Orders and reasons for judgment.
Restraints
5.The Mother is hereby restrained by injunction from contacting X by telephone (including SMS or any other messaging) or video, other than such contact initiated by X in accordance with her wishes, or as otherwise agreed between the parents in writing.
6.During any supervised time, telephone call, messaging and/or video communications between the Mother and X in accordance with these Orders, the Mother is hereby restrained by injunction from discussing with X any allegations the Mother has made regarding the Father in these proceedings.
7.Pursuant to Section 68B of the Family Law Act 1975, other than for the purposes of effecting a handover of X, the Mother is hereby restrained by injunction from approaching X, including coming within 100 meters of her place of residence with the Father (currently at D Street, Suburb E in the State of New South Wales), her school (currently J School) or any extra-curricular activities that X attends, other than with the express written consent of the Father.
8.Pursuant to Section 68B of the Family Law Act, the Mother is hereby restrained by injunction from contacting any medical practice or medical professional that X may attend from time to time, other than with the express written consent of the Father, and in the event that the Father provides his consent, the Mother is restrained by injunction from raising with that practice or professional any issues currently before the Court, including any allegations the Mother has made regarding the Father in these proceedings.
9.Both parents are restrained by injunction from physically disciplining X when in their respective care.
10.The parents are restrained from communicating with each other, other than by email, and only in relation to the welfare of X.
Passports and International Travel
11.Within seven days of a written request by the Father, both parents shall do all acts and things necessary to renew X’s Australian passport, as and when required, and/or apply for a new Australian passport (if that becomes necessary at any point), and the costs of the renewal/application shall be borne by the Father.
12.In the event the Respondent Mother will not comply with Order 11 above, the Father shall be permitted to apply for a passport for X without the consent of the Mother and pursuant to section 11 of the Australian Passports Act 2005.
13.X’s passport shall be held by the Father.
14.Pursuant to Section 65Y of the Family Law Act 1975, the Father is permitted to take or permit X to travel outside of the Commonwealth of Australia and for that purpose:
(a)If the proposed travel period encroaches upon the Mother’s time with X, then the Father shall provide make up time to the Mother, to occur in the next school holiday period after the travel period;
(b)Within 30 days of the date of departure, the Father shall provide to the Mother the proposed dates of departure and return for X and details of the destination, and contact details that X can be contacted on whilst overseas.
Provision of documents to mental health treatment providers
15.Copies of the following documents are permitted to be provided to any mental health treatment provider engaged for the purposes of providing treatment and management of any mental health issues for the Mother, the Father or X:
(a)The Family Report of Dr F dated 10 October 2022;
(b)The Report of Dr B dated 7 February 2023;
(c)These Orders and reasons for judgment.
Procedural
16.All outstanding applications are otherwise dismissed.
17.These proceedings are removed from the Court’s list of active cases/pending cases list.
18.The Independent Children’s Lawyer is discharged.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION
These are child-related proceedings with respect to one child of the applicant father and the respond mother’s relationship – X, who is 14 years old.
The mother’s case is that X is at risk of harm in the care of the father. The mother recognises that she has some mental health vulnerabilities but in her view they are independent of and unrelated to her ability to provide for all of X’s needs. She recognises that, unfortunately, other people do not agree with her on that point which is reflective in her final orders sought that provide for the father to have sole parental responsibility and for X to continue to live with him, but she seeks a transition to equal shared parental responsibility and equal shared care as soon as possible in order to be able to protect X from her father.
The father’s case is that the mother’s mental health has and continues to deteriorate to the extent that the mother now presents as an unacceptable risk of psychological and emotional harm to X. He stands ready to encourage and support a relationship between X and her mother but only provided that it is safe which is something that he and the mother are unlikely to be able to determine themselves.
The Independent Childrens Lawyer (“the ICL”) submits that the fundamental question in this case is how a meaningful relationship can be maintained between the mother and the child, without causing emotional or psychological harm to X.
The issues in this case are therefore:
(a)What harm the child may be subjected or exposed to in the care of the father;
(b)What harm the child may be subjected or exposed to in the care of the mother;
(c)In light of findings as to harm, what arrangements may provide the child with the benefit of having a meaningful relationship with both of her parents.
BACKGROUND
The parents met in 2004 while working in the public service. The father was 23 years old and the mother was 30 years old. They commenced a relationship in August 2008, married in 2009 and the one child of their relationship – X, was born in 2009. The parties separated in July 2021 when the father moved out. X was 12 years old. X spent three nights with the father each week for about five months until the mother started reducing the time which prompted mediation which was unsuccessful and by then X’s time with the father was negligible.
The father commenced proceedings in April 2022 seeking equal shared parental responsibility, six nights per fortnight and half of the school holidays. By her Response filed in June 2022, the mother sought Orders providing for X to have time with the father on Monday afternoons, for four hours on Saturday, Sunday and Public Holidays, and a lot of restraints and orders that were not feasible, appropriate or enforceable.
Following a contested hearing, in June 2022 Interim Orders issued for X to change residence and live with the father and spend time with the mother on alternate weekends from after school Friday to before school Monday and for half of the school holidays.
Thereafter, the proceedings have been intensely fought by the mother. Following another contested hearing, in September 2022 Interim Orders issued for the father to have sole parental responsibility and for X’s time with the mother to be professionally supervised and the matter was listed for final hearing in March 2023 which did not occur due to the late withdrawal of the mother’s legal representatives. In March 2023, one of the mother’s Applications in a Proceeding was dismissed with costs and an order was made not permitting the mother to file any further applications without first being granted leave to do so. At the final hearing in July 2023, the mother’s legal representatives withdrew on day one and over objection of the father the final hearing was again vacated and relisted for November 2023. Three further Applications in Proceedings from the mother were refused leave. Three others were listed for mention or hearing at the final hearing. Another Application in a Proceeding was attempted to be filed in between final submissions and delivery of judgment.
Four different legal representatives have come on and off the record for the mother. Correspondence in evidence indicates other lawyers have also acted for the mother from time to time. Over 200 documents have been filed. Over 50 sets of documents have been produced under subpoena. Over 30 sets of Orders have been made.
It is the case that each step the mother has taken in these proceedings has not been favourable to the mother in terms of the outcomes that she is seeking. In turn, rather than reconsider or recalibrate, the mother has doubled down and pressed harder which has seen her become increasingly isolated and embittered.
ORDERS SOUGHT
By his Further Amended Initiating Application filed on 19 June 2023 (in accordance with the directions for the July hearing), the father sought final orders including that:
(a)The father have sole parental responsibility and X live with him;
(b)X spend informally supervised time with the mother alternate Saturdays and Sundays from 10am to 5pm and otherwise be restrained form approaching her;
(c)The mother be restrained from contacting X other than Monday, Thursday and every second Saturday between 7pm and 7:30pm with X initiating the call;
(d)The mother attend upon a psychiatrist and depending upon production of a report in 18 months, the supervision requirements be revisited.
Attached to his Outline of Case Document filed on 13 November 2023 was a Minute of Orders Sought in these same terms but for some non-substantive amendments.
By her Further Amended Response to Initiating Application filed on 1 November 2023, the mother sought final orders including that:
(a)The father have sole parental responsibility with a requirement to consult the mother and X live with him;
(b)X spend informally supervised time with the mother alternate weekends from 10am Saturday to 10am Sunday, Thursday afternoons in every other week, three consecutive nights during school holidays and on special days;
(c)There be phone contact every Monday, Thursday and every second Sunday between 7pm and 7:45pm with X initiating the call;
(d)The mother attend upon a psychiatrist for 12 months (back dated to May 2023 when she started seeing her present psychiatrist);
(e)Upon production of a report in May 2024 confirming attendance and compliance with treatment (but not presentation), time progress to unsupervised for five nights per fortnight and half of the school holidays;
(f)From November 2024 (effectively 12 months from the final hearing), the parents have ‘joint’ parental responsibility and X live fortnight about with each parent;
(g)When X turns 16 years old in 2025, unless a different person is agreed, Ms G (the mother’s sister) is to obtain form the child her preferences and the parents are to do all things necessary to have her preferences met;
(h)The parents be restrained from monitoring or listening to any electronic communications and from monitoring or confiscating X’s devices;
(i)A range of detailed ancillary orders, including for example:
36. That the father shall continue to attend upon his treating mental health practitioners as and when directed by them and do all things necessary to engage and cooperate fully with these practitioners and shall take all reasonable steps to comply with any medication and treatment recommendation made by the practitioners. [Mr H] or his other treating practitioners shall report on any changes or improvements he has made, to the mother, on 31 December 2023 and each following 31 December until the final report being given to the mother on 6 June 2027. Should any of the father’s treating practitioners or [J School] or the Child’s treating counsellor or psychologist consider that the child is at risk in the father’s care at any time, this should be reported to the Independent Children’s Lawyer at Legal Aid ACT, who should bring the matter back for hearing and appropriate orders to be made.
37. This order 36 is retrospective and commences on 24 July 2021.
38. In view of the Independent Children’s Lawyer (“ICL”) having failed to bring any of the mandatory child concern reports made about the child with respect to the applicant father, she should be removed and replaced as ICL, disciplined, required to undertake relevant training, and ordered to apologise in writing to the respondent mother, and the child about whom these proceedings are being heard.
(j)A specified parenting coordinator be appointed to prepare “Recommendations and/or Proposed Protocols” on what they believe would be in the best interest of X and the parents are at liberty to apply to the court if either party fails to comply with the Recommendations and/or Proposed Protocols.
(k)Under the heading of Property Orders, “The consent orders are reopened, and overruled. They are replaced by the following orders which are just and fair, reflecting the principles in Kennon. An adjustment of 60:40 in favour of the respondent mother be made, from the orders made under duress on 15 December 2021.”
Immediate observation of the final orders sought by the mother is that they commence as feasible and arguable, then progress towards questionable before spiralling into untenable, inappropriate or ultra vires. That is a pattern illustrative of many aspects of the mother’s manner in this case.
Foreshadowed at the commencement of day three of the hearing, at the start of day four, the Father handed up an Amended Minute of Orders Sought (which became Exhibit A6), and was supported by the ICL, which included that:
(a)The father have sole parental responsibility and X live with him;
(b)Unless agreed otherwise, X spend professionally supervised time with the mother for two hours each alternate weekend;
(c)The mother be restrained from contacting X by phone unless initiated by X;
(d)The mother be restrained from contacting or approaching X, her home, her school, any medical treatment providers or extra-curricular activity providers;
(e)For the purposes of informing discussions about agreement between the parents for other time, on or after 1 February 2025, the mother shall obtain a report from one of three specified psychiatrists.
With her written closing submissions on 24 November 2023, the mother filed a Further Amended Initiating Application seeking further Orders which were untenable, inappropriate or ultra vires.
THE HEARING
The matter came before me for final hearing for a total of four days between 14 and 17 November 2023. A trial plan and safety plan had been prepared and distributed by the Court and agreed to by each of the parties.
The ICL was represented by Counsel. The father was represented by his lawyer as solicitor advocate. The mother had representation by way of the Commonwealth Family Violence and Cross-examination of Parties Scheme including Counsel to appear on her behalf for the purposes of the final hearing. Despite this, there was material, including Applications in a Proceeding and supporting affidavits, which had been filed by the mother herself during the period in between her solicitors coming on record and the first day of the hearing. Her Counsel was not across these applications, their affidavits and the parts of the final orders that were sought by the mother that extended beyond the scope of the brief referable to the parenting dispute.
The parties sought and were given time to have discussions about reaching agreement or to narrow the issues in dispute. The discussions spanned most of the first day of the hearing. By 2.00pm, Counsel for the mother sought leave to withdraw from acting for the mother on the basis that advice was not being received. The mother herself objected and was given an opportunity to be heard on her own Counsel’s application to withdraw.
The mother was dysregulated, highly emotional, anxious, aggressive as to her language, and aggressive as to her tone and body language. An order was made for the mother to attend, appear and participate by way of remote appearance which was facilitated immediately from an adjoining courtroom.
Counsel for the ICL made submissions outlining concerns for the mother’s capacity to continue following the occurrences of the day, as well as the risk involved in ongoing time arrangements which provided for a telephone call between the mother and X that night. Those submissions were echoed by the advocate for the father. Orders were made that the balance of the hearing was to be by remote appearance by all parties and all time and contact between the mother and the child be suspended until further order.
On day two, the ICL made an application to interpose the evidence of Dr B - the single expert witness who had been appointed to conduct a psychiatric assessment of the mother. That became an application, supported by the father, that the mother be found to be a person in need of a litigation guardian pursuant to r 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The mother opposed it. Dr B gave evidence and was cross-examined on the application. All parties made submissions.
At the commencement of day three, ex tempore reasons were delivered for the decision to dismiss the ICL’s application that a litigation guardian needed to be appointed for the respondent mother (see Krupi & Krupi (No 4) [2023] FedCFamC2F 147). A further revised trial plan was distributed to the parties. The applicant father gave evidence and was cross-examined by Counsel for the ICL. Pursuant to the long-standing order in force under s 102NA of the Act, the mother was not permitted to cross-examine the father.
The mother opened her case and adduced into evidence two trial affidavits and was cross-examined by the advocate for the father. It was then necessary to interpose Dr B who was cross-examined by all three parties. As cross-examination of the mother by the ICL was not reached, there was discussion about starting earlier on day four at 9:15am for that to occur. The following exchange occurred:
[MS KRUPI]: I’m really sorry, but I won’t be able to cross-examine [Dr F]. I’ve got an appointment I can’t break.
HIS HONOUR: [Ms Krupi], [Dr F] will be here between 10 am and 12 pm tomorrow in order to be cross-examined by the parties in this hearing. If you choose to not attend ….
[MS KRUPI]: Well, can the independent children’s lawyer ask the questions I wanted to ask, or can you?
HIS HONOUR: No, I cannot
[MS KRUPI]: I’ve emailed them through.
HIS HONOUR: and the ICL will ask the questions that the ICL deems necessary – is the questions that they will ask, so
[MS KRUPI]: Yes, but what about you, your Honour? Can you ask the questions I wanted to ask?
HIS HONOUR: No, no. I am not here to run your case for you. I made that clear earlier today, so
[MS KRUPI]: Yes, but I’ve got an appointment that I can’t break.
HIS HONOUR: Well, this is an appointment that you cannot break, so if you choose not to attend the proceedings tomorrow, I can tell you now that the proceedings will proceed and carry on in your absence. I can’t say that any clearer to you.
[MS KRUPI]: Are you trying to say that I’m going to lose if I don’t come tomorrow? I will be there as much as I can, but just, like, for a few minutes, I won’t be there. That’s all.
HIS HONOUR: If it’s a few minutes, we can accommodate that. Is that what you were saying?
[MS KRUPI]: Yes, it’s a few minutes. Yes.
HIS HONOUR: What time?
[MS KRUPI]: I won’t be able to really be there before just – sorry. Just one moment, please. I can be there if we start early, but I am unavailable – at this stage, and it might change, but at this stage I’m unavailable from 10.55 to 11.50, unfortunately. I don’t want that to be the case, but unfortunately that’s the case.
HIS HONOUR: All right. That’s a whole hour.
MS HARDERS: Could there be an explanation from the mother as to why we have costs that have been incurred in relation to [Dr F]– [Dr F]. So I’d like some context.
[MS KRUPI]: Well, I haven’t been informed of trial ..... so until now – until an hour ago.
HIS HONOUR: I understand the mother has told us that she has an appointment.
[MS KRUPI]: And it was only yesterday that you were telling me that you were applying for the whole thing to be deferred, so what am I, a crystal ball eater.
HIS HONOUR: All right.
[MS KRUPI]: You would have wasted her time and costs too, Independent Children’s Lawyer, would you not?
HIS HONOUR: What’s your view, Ms Harders, on starting at 9.15 tomorrow?
MS HARDERS: I will start as early as your Honour is willing to sit.
HIS HONOUR: Mr Cameron, are you available to start at 9.15 tomorrow morning?
MR CAMERON: Yes, I am.
HIS HONOUR: All right. We will start the proceedings tomorrow at 9.15 am with the cross-examination of the respondent by the ICL, noting the allocation of time for that to occur is 45 minutes. We will then move to the evidence of [Dr F] commencing at 10 am. If, for whatever reason, the cross-examination is not completed by then, we will interpose [Dr F] on the basis that that is a single expert witness who is privately appointed.
….
HIS HONOUR: And then I will adjourn the court. We will resume at 9.15 am tomorrow morning.
The trial plan otherwise remained in place for day four which accounted for the evidence of Dr F - the Family Report Writer, the balance of the mother’s case and closing submissions.
At the commencement of day four, it became apparent that the mother was attending by audio-link from her mobile phone whilst at the same time checking in for a flight from the airport. The plan to cross-examine her was abandoned and proceedings were adjourned to provide an opportunity for the mother to establish a secure and private video-link connection. At 10:00am the mother appeared via video-link from within the “[A] Lounge” at the airport. The unbreakable appointment was a work trip to Country MM commencing with a flight to Sydney. The mother intended to take her flights that day.
In those circumstances, the Court was no longer satisfied that conditions pursuant to s 102F of the Family Law Act 1975 (“the Act”) were suitable for the mother to continue to appear before the Court by way of audio or video link and the Order permitting the mother to appear before the Court by way of audio link was discharged. The mother retained the opportunity to return to Court in-person should she wish to be present for the remainder of the proceedings. She did not appear and the hearing continued in her absence.
The Family Report Writer, Dr F, gave evidence and was cross-examined. The Court then turned to the balance of the evidence that may be received in the mother’s case in her absence.
Over objection from the ICL, the balance of the affidavits that had been filed, served and listed on the mother’s Outline of Case Document were received into evidence. The respondent mother’s sister and father were each cross-examined being the only witnesses that were available. The maternal grandmother was in attendance in person but had left the Court by the time she was called. The mother had filed a tender bundle which was not paginated, not indexed and 6,091 pages in length. I have attempted to refer to it as referenced in the mother’s affidavit at Exhibit R2 but with very little success. For example, the first reference to the tender bundle is at paragraph 2 of Exhibit R2 which says “Tender bundle, referrals to surgeons for these procedures, dated 1 December 2020 and onwards.” The next example is at paragraph 5 – “Tender bundle, example of X with her cousins having fun at Town K on holiday at Region L, around December 2013.” Without pagination or indexing the references have little weight.
At the conclusion of day four, orders were made providing for the parties to file and serve written closing submissions and interim orders were made on joint application by the ICL and the father.
The material that was duly admitted into evidence or otherwise relied upon is in the Exhibit List which is attached to these reasons at Annexure A.
As to the transcript, for any person that may have a requirement to have regard to it, I would encourage them to obtain an audio copy in order to have a full appreciation of that aspect of the proceeding.
PRINCIPLES
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper, having regard to section 61DA and section 65DAB of the Act.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
An order for equal shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The Primary Considerations set out in s 60CC(2) of the Act 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) of the Act sets out a number of Additional Considerations to which the Court is required to have regard.
Abuse and family violence
‘Abuse’ in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the court to include in the order any necessary safeguards.
How the Court approaches allegations of unacceptable risk
The High Court in M v M (1988) 166 CLR 69 (“M v M”) at [76] said notwithstanding allegations of abuse, the Court’s obligation is to determine what orders are ultimately in the children’s best interests. The Court is not required to resolve in a definitive way any disputed allegations of abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence, although in appropriate cases the court can and should make such findings. Whilst the type of risk the Court was concerned about in M v M was sexual abuse, the principles have been extended to other forms of abuse including psychological harm. B and B (1993) FLC 92-357.
Should the Court establish the existence of an unacceptable risk, the Court must proceed to determine whether that risk “is able to be sufficiently managed or ameliorated”. Blinko & Blinko [2015] FamCAFC 146 at [83].
On the question of unacceptable risk, the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 established that:
(a)Factual findings about the past and fact based enquiry about the future are two different things;
(b)Risk does not need to be established on the balance of probabilities in the same way that facts are proven;
(c)Risks of harm are postulated from known historical facts and present circumstances;
(d)In assessing whether there is a risk that something may happen, ‘possibilities’ are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those ‘possibilities’;
(e)Allegations of family violence should be cast and considered in the terms of section 4 and section 4AB of the Act;
(f)The assessment of risk is an evidence-based conclusion and it is not discretionary. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interest, which entail an exercise of discretion.
PARENTAL RESPONSIBILITY
I am satisfied that there are reasonable grounds to believe that the parents have engaged in family violence by way of emotional and psychological harm to the child by exposing her to the conflict between them and X has experienced the negative impacts of that attempted coercion and control of her. Accordingly, the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child does not apply. Further, I am well satisfied that the presumption is rebutted by evidence that it would not be in the best interests of X for the parents to have equal shared parental responsibility.
In October 2022, the Family Report Writer reported:
91. The parties do not have a functional co-parenting dynamic. It appears that attempts to communicate are not constructive and typically lead to further conflict. Neither parent was of the view that this could be improved to the extent that equal shared parental responsibility would be appropriate in the future.
92 It was noted that [Ms Krupi] has a tendency to send a high volume of correspondence to [Mr Krupi] (either directly or through his lawyers), particularly when she does not receive what she perceives to be a prompt reply. [Mr Krupi] also tends to escalate in her correspondence to the point of threatening to report others to the relevant professional associations or government bodies if they do not comply with her demands to respond within her timeline. [Mr Krupi] acknowledged he found it difficult to respond to [Ms Krupi] and attempted to avoid communicating unless absolutely necessary in order to avoid further conflict and voluminous correspondence.
The co-parenting relationship has declined significantly since then. I see no prospects of any aspect of parental responsibility that could be shared to the benefit of X. Such a consultation process could only yield at best, delay, and at worst, ongoing trauma and despair for X. The father has exercised parental responsibility well since being obligated to do so. I have no trouble finding it is in X’s best interests for the father to have sole parental responsibility.
RISK AND PROTECTION FROM HARM
The first two issues for determination in this case of what harm the child may be subjected or exposed to in the care of the father and the mother respectively can be dealt with when considering the primary consideration at s 60CC(2)(b).
What harm the child may be subjected or exposed to in the care of the father
The father deposed:
138. I live in a 4-bedroom home in [Suburb E] with all the usual amenities. [X] has her own bedroom at my house.
139. My home is approximately 10 kilometres from her school, [J School]. I drive [X] to school and collect her from school each day.
140. I care for [X] at all times when she is with me. I have structured my work hours around her school hours and her extra-curricular activities.
141. I am responsible for taking her to her extra-curricular activities, medical and any other appointments.
142. I pay for all [X]'s expenses, other than [Ms Krupi] has recently contributed an amount towards her [dance] lessons, but prior to that I was paying the full costs.
143. [Ms Krupi] commenced paying me child support in the sum of $40 per fortnight, commencing from 19 October 2022.
144. Since 24 June 2022, when [X] commenced living with me, she has settled well into the new arrangement. She generally appears happy and relaxed, and my relationship with her continues to be loving and close. I am aware that [Ms Krupi] claims that [X] is depressed, fearful and subjected to abuse in my care. I reject these assertions and I say that [X] does not exhibit any of those traits when in my care.
145. [X] has many [dance] commitments which occupy a lot of her spare time out of school hours. Those commitments are quite demanding, and I do worry about the intensity of her schedule, but at this stage [X]'s timetable has not changed since she came into my care. I am responsible for taking her to all her lessons, exams and other commitments when she is in my care.
146. The only time I have observed [X] appear anxious, upset or defiant is after she has been in communication with [Ms Krupi] or in the period immediately after she returns from spending time with [Ms Krupi]. On those occasions [X] has made remarks such as: "You are lying to me, Dad. Also, [grandma] is also lying [my mother]" and "You don't want to take me to see my grandma. That is what Mum said'' and "If we get cats you will want me to do all the chores and you will do nothing yourself' and "Mum has said you have been mean to me in the past and you have to apologise." When I have attempted to restrict her phone usage, [X] has said: "Mum, said I can use my phone all the time. You can't stop me using my phone."
147. My way of dealing with [X] when she behaves this way is to give her time to herself to readjust. I do not get into arguments with her about the substance of what [Ms Krupi] has discussed with her, and I generally just say: "These are adult matters between your mother and I, and it is not something you need to worry about." I reassure her and provide her with love and support. [X] snaps out of this quickly.
148. In my experience, [Ms Krupi] has strong views, and she expresses them forcefully. I have heard [X] try to deflect [Ms Krupi] when she becomes fixated with saying negative things about me and raising inappropriate subjects with her. During their phone calls, I have heard [X] say to [Ms Krupi] many times, words to the effect: "I don't want to talk about this anymore" and "Stop, mum." or "That is not true. That is not what happened." I have observed [X] appearing frustrated and confused by [Ms Krupi]’s fixation with these issues.
149. [X] is a hardworking student, and she is performing well at school. Her school report for the final term in 2022 was very good, and [X] received an award for […] at the end of the school year. I can tender copies of her school report and awards notice at the hearing of this matter.
150. I am in regular contact with her school, and I attend Parent teacher nights and other school events.
151. Up until November 2022, [X] had been receiving counselling from [Ms M] from [N Centre]. She had been receiving counselling from [Ms M] since 2021.
152. On 30 November 2022 I received an email from [Ms M] advising that she is finishing up at [N Centre] and would not be able to continue seeing [X]. In that email, [Ms M] advised that: "Lately [X] has seemed really ok and pretty happy in sessions generally. " Annexed hereto and marked "[MSM]" is a true copy of the email from [Ms M] dated 30 November 2022.
153. I have contacted [N Centre] in relation to providing a replacement counsellor for [X]. I have been advised that details of a suitable counsellor will be provided to me once [N Centre] have those details.
In her written closing submissions, the mother submits:
[Mr Krupi] has had four mandatory child concern reports made about him by independent third parties. These are:
1. My clinical psychologist [Ms O] in 2021, as she feared that [Mr Krupi] is grooming [X].
2. [X]'s [N Centre] Counsellor, [Ms M], in 2021, for something [X] disclosed to her in her counselling sessions.
3. [J School] in February 2023, for [Mr Krupi] throwing [X]'s bandages for her [medical condition] into the hallway, and neglecting [X]'s and confiscating her phone again, so [X] cried all night and [Mr Krupi] screamed at her, “You do not need cream on that […] before I apply the bandage. You are a spoiled brat and you are not grateful for anything I do. You are a manipulative bitch.”
4. Kids Helpline on several occasions as per the subpoenas that I issued.
The Family Consultant reported that from the AFP material provided to her, an Evidence-In-Chief Interview was conducted with the mother on 28 January 2022 in which the mother reported multiple incidents of alleged abuse including physical abuse, property damage and sexual coercion sometimes in the presence or near presence of X. The mother did not agree to the police conducting an interview with X until:
138. On 20 April 2022, [Ms Krupi] informed police via email that [X] now wanted to make a statement about “the crimes daddy has done”.
139. An EICI was conducted with [X] on 24 April 2022. She made disclosures including incidents of varying severity. [X] disclosed that both parents had called her a brat as a child. Her mother had explicitly told her that [Mr Krupi] was taking them to court and was going to take all of their money. [Ms Krupi] also told [X] that she never loved [Mr Krupi] and only married him because he gave her an ultimatum of marrying her or aborting the pregnancy of [X]. [X] reported having been told by [Ms Krupi] to keep a diary of everything [Mr Krupi] does because her memory is unreliable and she often forgets what has happened because her brain is damaged from trauma by her father. Of note, when detailing a possible assault, [X] told police it was her mother’s perspective of what happened and not her own.
Further:
135. There have been a substantial number of reports to child protection in relation to this family. As at […] June 2022, there had been 21 reports to CYPS, 20 of which were received post-separation. It was noted that both parents had made a number of reports against each other and that the main concerns pertained to alleged family violence perpetrated by [Mr Krupi], mental health concerns for [Ms Krupi], and allegations of neglect. No interventions had taken place.
136. According to CYPS, police reported concerns when investigating the allegations made by [Ms Krupi] against [Mr Krupi], noting that [Ms Krupi] reported a number of allegations against herself and her narrative regarding the allegations changed, including in relation to the abuse that [X] has encountered. Police advised that there was no corroborating evidence for her claims based on the evidence gathered to date.
I find that the father presents no risk of subjecting or exposing the child to harm in his care. I find that because:
(a)X has lived with the father since June 2022. None of the father’s evidence about X’s welfare in his care was challenged in any meaningful way by the mother. Further, there was a plethora of independent extraneous material available to the mother, the ICL and the expert witnesses. Other than the mother’s own opinion, nothing was adduced in evidence suggesting the father’s evidence about X’s welfare in his care was not true.
(b)The many and varied allegations of the mother have been received and investigated by the AFP and CYPS and found not to be substantiated.
(c)The allegations are denied by the father. The allegations have also been considered and investigated by the ICL so far as these proceedings are concerned.
(d)The mother’s evidence of her allegations is emotionally charged and escalates each time an opportunity for it to be supported by someone else is not realised. The reports to CYPS by other people upon which the mother seeks to rely so heavily are not evidence of what she alleges, they are evidence of the mother making those allegations.
Accordingly, Final Orders do not need to be made in consideration of protecting X form harm in the father’s care.
Further, the written submissions on behalf of the father I find accurate and compelling to the extent that I adopt as findings the statements therein pertaining to:
·The Father’s case.
·The mother’s conduct at final hearing.
·The Evidence.
·Expert Evidence.
·Evidence of Ms G and Mr P.
·[The Father’s] Conclusion.
A copy of those parts of the father’s submissions form part of these reasons and are attached at Annexure B.
What harm the child may be subjected or exposed to in the care of the mother.
The mother’s mental health.
I accept the ICL’s submissions summarising the evidence about the mother’s mental health and adopt as findings the statements therein (references omitted):
20. It is clear from the evidence that the Mother suffers from Major Depressive Disorder and a Personality Disorder (with Borderline, Obsessive Compulsive and Narcissistic traits). There remains some question as to whether she is suffering from a major depressive episode at present – though the evidence makes clear the Mother’s Major Depressive Disorder it is in “partial remission”, at best. The Mother was also recently diagnosed with Attention- Deficit-Hyperactivity-Disorder (“ADHD”) by her treating psychiatrist, [Dr Q]. The possibility of the Mother being on the Autism Spectrum or otherwise neurodivergent was also raised in [Dr B]’s evidence.
21. Quite clearly, the evidence establishes that the Mother has a complex psychiatric profile, which manifests in behaviours including (but not limited to) rigidity in her thinking; difficulty adapting to different circumstances; chronic issues around emotional regulation, social skills and interpersonal effectiveness; lack of empathy; difficulty understanding the experience of other people; high levels of emotional dysregulation; and low distress tolerance.
25. The evidence about the steps the Mother has taken to engage with treatment in relation to her psychiatric conditions was limited to the following:
(a) Evidence that the Mother had engaged in 6 consultations with [Ms R] (her treating psychologist) since November 2021;
(b) Evidence that the Mother had engaged with [S Program] at [C Child Contact Service] for Cognitive Behavioural Therapy and the [T Program], for a total of 8 sessions; and
(c) Evidence that the Mother was prescribed Quetiapine (an anti-psychotic), Desvenlafaxine (an anti-depressant) and Methylphenidate (a central nervous stimulant used to treat ADHD) by [Dr Q], the latter of which [Dr B] considered may be having an adverse impact on the Mother’s mental health status.
26. The ICL notes that regrettably, there was no independent evidence from the Mother’s treating practitioners to document any progress or improvements to the Mother’s mental health. Further, whilst the Mother’s evidence was (at least initially) that she considered her Ritalin prescription in September 2023 had improved her mental health presentation and made her less impulsive, she appeared to resile from that position, after hearing the evidence of [Dr B] on 15 November 2023. Her assertion as to that improvement is also not supported by the evidence, which suggests that she continued to engage in frequent and unrestrained contact with the Court and the parties, even after she started taking ADHD medication.
27. In the absence of any independent evidence as to the progress of the Mother’s mental health treatment, the ICL submits it is open to the Court to draw an inference that any such evidence would not have assisted the Mother’s case, pursuant to the principles in Jones v Dunkell. The Mother’s mental health status remains a live and real risk to [X], such that it is necessary for orders to be entered to safeguard [X] from the possibility of psychological and emotional harm.
I accept the father’s submissions summarising the evidence about the mother’s behaviours and adopt as findings the statements therein:
48. Even though the Mother’s time with the child has necessarily been constrained by interim orders since September 2022, there is ample evidence of her incapacity to self- regulate her pre-occupations about the Father in the presence of, and in her dealings with, the child. The Father relies on the examples deposed in his Trial Affidavit filed on 16 October 2023 of the Mother inappropriately exposing the child to her distorted beliefs, including: trying to get the child to runaway from her Father’s home (paragraphs 88-105); encouraging the child to communicate with the ICL about issues in the current proceedings (107-108); telling the child that her Father does not care about her and berating the child when she becomes upset (paragraph 126); attempting to undermine the child’s relationship with the Father (paragraph 172), and; making false reports to the Police resulting in the Police conducting a welfare check of the child at the Father’s home (paragraphs 196-197).
49. It is the Father’s submission that significant weight be placed on the Mother’s aggressive outbursts and unravelling during the Court hearing itself. Her incapacity to regulate this behaviour, including repeatedly using offensive language, and her decision to fly overseas for a work trip on the last day of the trial, demonstrates a complete lack of judgment on the part of the Mother. Given that the Mother is a [professional], and up until recently held [working qualifications], it highlights the seriousness of her conduct, and her absolute inability to control her worst impulses. The Father submits it would be illogical to assume, as the Mother asserts, that she can somehow self-regulate her behaviour outside of the Court process (including when in the presence of the child). The Father submits that the evidence before the Court, including the examples set out above, discredits this proposition entirely.
The mother’s false fixed beliefs – The scooter episode as an example.
The mother has made and continues to make serious allegations about the father causing harm to X. The pattern to these allegations is that the mother seizes upon a historical or contemporaneous ordinary event and views it through her own particular lens. She then forms a false, fixed view about it. That alone could be relatively innocuous however it is the mother’s relentless prosecution, escalation and exposure of her views to X that becomes problematic for her and X.
To provide one example out of the many allegations made by the mother is to trace the evidence in relation to a scooter which eventually contributed to the mother’s false fixed view that the father is grooming X.
The mother deposed:
[60] I recall in or around August 2021, [Mr Krupi] purchased [X] a scooter. [X] told me that she had been riding the scooter with [Mr Krupi] to school one morning. On that occasion, [X] said that [Mr Krupi] had become frustrated with her and had ridden off too fast for her to keep up with him and she fell off. [X] also told me a few weeks later that [Mr Krupi] required her to cross !he road on her own. [X] told me words to the effect "Dad rode off as he was angry with me. It was hard for me to catch up and I sat down and started crying. I then tried to catch up to him. When I caught up, I got a bit too close to him and he yelled at me. I swerved so I didn’t hit him and I fell over". I was concerned for her safety.
[59] …. [by 30 September 2021] I was worried that [X] had started to keep things from me as directed by [Mr Krupi]. For example whist in [Mr Krupi]'s care [X] fell off her scooter and injured her knee. [X] told me that [Mr Krupi] told her she shouldn't tell me what happen because I would be 'upset'. I was very worried about the position that would put [X] in with respect to having to manage mine and [Mr Krupi]'s emotions.
The father deposed:
[69] When [X] is in my care, [Ms Krupi] constantly seeks to control and dictate what I do with her, and she continually criticises my parenting. This occurred prior to [X] commencing to live with me on 24 June 2022, and has continued to this day. For example, I purchased an electric scooter for [X] as a gift. When [Ms Krupi] found out about this gift she was outraged and accused me of putting [X]'s life in danger.
On 18 October 2021 at 6:55am, the mother sent an email to the father (in circumstances where unbeknownst to the father X had informed the mother of her scooter accident in which she’d hurt her knee):
Hi [Mr Krupi]
As a parent. I need to be assured about your ability to keep [X] safe. This includes road safety.
In my assessment. [X] is still not confident to cross the road by herself. Although she now makes the judgment on when to cross. we are still holding hands to do so and she prefers this.
What is your assessment?
[Ms Krupi]
Less than an hour and a half later at 8:28am, the mother sent another email:
Hi [Mr Krupi].
Please do not ignore the email below which I am now forwarding to you again not only for acknowledgment. but for response please.
I will need to involve the authorities if I do not have your response by midday today as I fear for [X]'s safety.
Thanks.
[Ms Krupi]At 9:34am, the father replied by email:
Hi [Ms Krupi]
Not sure what the context is here but acknowledge receipt. [X] is safe of course and checks when crossing the road. She is always under my supervision too. We either hold hands or I let her take the lead and follow closely behind her. She checks for traffic in both directions when crossing the road. We try to not cross busy roads and if we do (which is rarely the case in the [Town U] area) we use designated crossings. My assessment is that [X] is a sensible and smart child who can exercise age appropriate judgement. This does not sound like a warranted aspect to raise re calling the authorities.
On a separate aspect we need to limit communication and ensure it is polite - for the time being one email/ other communication a day sounds good and you have already sent more than one today (more like 4) - starting from shortly after 7am. Please try to not adversely affect my time with [X] with all this communication.
Six minutes later, at 9:40am the mother responded:
[Mr Krupi]
Please do not play dumb.
I know you have bought [X] a new electric scooter yesterday, and have been riding together.
If I do not agree with your judgment. I will take appropriate action.
If [X] is injured again in your care. including getting hit by a car. I will ask the police to press charges against you as it will be no accident.
[Ms Krupi]
On 26 October 2021, the mother made a child concern report to CYPS by email:
Hello
I need to make you aware of a current danger my daughter faces because of her father's choices.
An issue has arisen where [Mr Krupi] has bought her an electric scooter and they are riding from [Town U] to [J School] and back.
Tonight on our good night call, [X] said that they are having to stop frequently in the middle of the road to wait for cars, but the cars always stop for them anyway.
This sounds like a serious danger to [X].
As I have told you in my first report made to you, she is not confident to cross the road by herself on foot. So logically, she will be in trouble if [Mr Krupi] goes ahead and she does not follow him.
I am informing you in an attempt to stop the scooting until [X] is more capable of managing road safety, and will also put in a family violence order perhaps. I have spoken with police already about it this morning.
I feel his scooting obsession is about competing with me, and keeping her in fear. Again, something that has the potential to be fun, but isn't.
After her manual scooter fall, she had two months of physiotherapy and her knee still hurts! The treatment exceeded the allowed physio under our private health cover so [Mr Krupi] said to her he could still take her but it would cost more. So she told him she didn't need to go again.
She showed me a scrape to her foot caused by the scooter this week, on our good night call also.
I can see how this may look like an overreaction on my part, but [X] genuinely cannot even walk to the local shops alone at this stage, as she has never done so and is not confident.
So how can she be safely operating an electric scooter, with left and right brakes, accellerator, steering all to manage, along with road safety?
It is only a matter of time until she is in a car accident which I believe is what [Mr Krupi] has in mind as he is not thinking properly.
I have still had no email from CYPS informing me what you will do to protect [X], or what I should do. I need advice please! Is a family violence order the best option? I will submit my application tomorrow, as I have no other ideas of what to do.
When can I expect to be informed please? I hope you will act before anything happens to her.
Are referrals able to be made to get [Mr Krupi] to become more aware of the need to not put our daughter at risk of being killed or permanently disabled or injured in a road accident?
Regards,
[Ms Krupi]
On 24 November 2022, in a lengthy email to the father’s solicitor and the ICL, the mother included:
And when he caused [X]'s knee injury by riding off too fast after screaming at her and she fell off her scooter trying to catch up with him. and he pretended that she had hit a bump, he took her to [V Medical Centre]. with a view to concealing his poor parenting and deliberately disrupting her medical record continuity to protect himself.
By 7 July 2023, in her affidavit the mother deposed:
110. I acknowledge that after [Mr Krupi] and I separated, I have made a number of reports to CYPS. I was concerned about his behaviour when [X] fell off her scooter and how he would constantly yell at her over small mistakes. At the time, I did not consider that his parenting was appropriate and I believed he was irrational in his responses to [X]. I understand that CYPS did not take the same view as me. l did not have any malicious intent in making these reports. I did genuinely have concerns about [X], which I had relayed to my various supports, [Ms O] and [Ms R] who reassured me that my concerns were valid.
241. I note that [Mr Krupi] has attested, "[X] had no serious injury." My recollection is that he took her to many physiotherapy sessions for a painful knee in the months following the accident. This occurred on 24 and 27 August 2021, among other times.
The mother caused a subpoena to issue to Suburb W Physiotherapy who produced documents. On 13 November 2023, the eve of the final hearing, the mother filed an affidavit (which became Exhibit A5 in the father’s case) which, during a conversation with the mother about answering the subpoena, included a representation by “the lady from Suburb W physiotherapy” who purportedly said to her that the father “is grooming her [X].” The mother sought an affidavit from the director/practice manager “[Ms Y]” and on day one of the hearing, the mother was granted leave to file it.
On no interpretation from reading that affidavit can it be said that is gives rise to a suspicion of grooming. The highest points for the mother’s case are that her view of the father was “odd” and “I do remember [X], because I had an intuition that something was not quite right.” There is no evidence as to what the conversation between Ms Y and the mother was that precipitated the hearsay representations.
A plain reading of the evidence as to what happened is that the father bought X a scooter, she fell off and hurt her knee, the father took her to a GP and then a physiotherapist. He did not involve the mother because it was relatively incidental.
In the mother’s eyes, the father has demonstrated gross inability to assess age-appropriate activities for X and has put her in mortal danger. She sees that despite given the opportunity, the father demonstrated no insight into this situation and consequently has no ability to co-parent or to protect X. The mother believes she was left with no option but to seek police assistance for a family violence order and emergency intervention from CYPS.
The mother claims observations of other people in support of her own allegations of grooming which are patently not there. Under cross-examination and in her submissions, the mother refused to resile from her position as to proportionality of her response or her allegations of grooming.
Another example of the ever-increasing seriousness of her false fixed views is the mother’s emails to the parties and others including the Commonwealth Attorney General as recently as 21 September 2023, that the father may kill X or herself because of her perception that he was slighted about who happened to have possession of X’s passport. Under cross-examination, the mother confirmed that her warning was warranted, she retained the belief that the father may kill X or herself and that she did not resile from any of it.
In her closing submissions, the mother submits:
138. In summary, you can all go fuck yourselves. I will never resile from my view that [X] should be returned to the love of her mother and my side of the family, to spend substantial time, as much time as she wants to, and live with me if and when she chooses.
139. [Mr Krupi] should be compelled by injunction not to poison her against me, whatever words need to be used there, you should decide. But it is indisputable that one of the reasons [X] has not texted or called me since she was freely allowed to, is because [Mr Krupi] has said to her words to the effect, “If you do that, it means you are not grateful for everything I have done for you. It means you are not grateful I pay for your dance classes and take you to dance” – an obvious very thinly veiled threat that he will stop doing so if she calls and texts me – any idiot can see that – hopefully you are bright enough to do so – it is entirely clear and obvious.
Findings in relation to risk of harm in the mother’s care
I find that the mother presents an unacceptable risk of subjecting or exposing X to serious psychological harm. I make that finding based on known facts and circumstances in line with the ICL’s submissions that the mother is likely to:
(a) Transfer her negative views of the Father to [X];
(b) Undermine the child’s relationship with the Father;
(c) Expose [X] to key concerning behaviours of the Mother, including inflexibility in the Mother’s thinking, false fixed beliefs about the Father, a lack of empathy towards the child, and her narcissistic, obsessive compulsive and borderline traits;
(d) Expose [X] to unfounded criticisms of the Father, which is likely to have deleterious flow-on effects to [X]'s sense of self-worth and development of healthy relationships in the future;
(e) Cause psychological and emotional harm to [X].
[Dr B] made clear that the impact on [X] is linked to how the Mother relates her experience of the world to her, which is through a “very particular lens”, and which would serve to provide [X] with a framework for thinking about the world and her interactions in it. He opined that if placed in the Mother’s care, [X] would be forced to learn certain things to self- protect – including what she could and could not say in her Mother’s presence, and whether she would challenge her Mother on any given issue. Further, he opined the Mother may find it difficult to adapt to [X] forming different and new bonds with others, and that she is likely to be overprotective and hypervigilant in her care of [X].
I find that the risk of harm outweighs the possible benefits to X from time with the mother. Having made that finding, I am bound by the High Court’s determination in M and M [1988] HCA 68 at [25] to not make orders providing for X to live with or spend time with the mother. Accordingly, Final Orders need to be made to protect X from harm in the mother’s care.
Mitigation of harm
Having made findings that X is at risk of harm, it is necessary to consider what measures may be implemented to mitigate the risk. There are three measures that have been considered in these proceedings: Limiting the type and length of any time; Supervision, and; A treatment regime for the mother.
Limiting the type and length of any time
Dr B opined that ultimately, the greater the amount of time spent with her mother, the greater the potential adverse impact on X’s mental health. The time regime proposed by the father and the ICL is what was in place between September 2022 and around March 2023 and proved to be sufficient to maintain the relationship between X and the mother until such time as the circumstances supported progression of the arrangements.
Telephone time and electronic communication have been provided for in interim orders in attempt to facilitate the relationship. These however have proven to be problematic by increasing X’s exposure to the conflict between the parents and the mother’s harmful behaviors. There is cogent evidence that the mother denigrates and criticizes the father and instigated the idea and encouraged X to run away from the care of the father. The mother could not demonstrate any insight into the inappropriateness and harmful effects on X of such behavior. The father’s understandable monitoring of electronic communication has fed further accusations of the mother. In circumstances where the risk of harm posed by the mother is not physical but verbal, electronic communications exposes X to harm in the same way that in person time does. As such, the risk of harm outweighs the possible benefits to X from electronic time with the mother and therefore orders are not made providing for electronic time with the mother.
Supervision
In M and M at [24] the Court expressed “In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
I accept and adopt the ICL’s submission that:
29. Neither of the two expert witnesses in the matter, [Dr B] and [Dr F], supported the notion of unsupervised time between the Mother and the child. Both doctors opined that supervised time was essential, in order to protect [X]'s wellbeing. The ICL submits that in the absence of expert support for unsupervised time, the question then becomes how supervised time between the Mother and the child should occur.
30. There has been at least one instance, in a supervised setting, where the Mother has been unable to control her behaviour towards the child, and has actively criticised [X] to the point where intervention by the supervisor was required. [Dr F] gave evidence that whilst it is clear the Mother loves [X], it is also clear she cannot manage her impulses, which has a significant and deleterious flow on effect to [X]'s psychological health. That the Mother’s harmful behaviours are not restricted to a Court setting is clear on the evidence; there have been instances where she herself has admitted to having physically disciplined the child, and where she has otherwise engaged the child in the dispute.
31. The ICL submits that in circumstances where concerns have been raised about the Mother’s behaviour even in a supervised setting, the Court should exercise extreme caution when considering whether to approve other, untrained, supervisors, to supervise the time between the Mother and [X]. In that vein, [Dr F] gave evidence that she would be concerned about supervision being conducted by a person without training, because the supervisor must have the ability to intervene if any behaviours of concern emerge during contact between the Mother and the child. The Court should take heed of that opinion.
The professional supervision regime proposed by the father and the ICL is what was in place between September 2022 and around March 2023 and proved to be sufficient to maintain the relationship between X and the mother until such time as the circumstances supported progression of the arrangements.
Of the informal supervisors proposed by the mother, I do not accept that they are equipped to deal with the problematic behaviours likely to be exhibited by the mother. The maternal grandmother was the mother’s designated support person during the final hearing and I observed no indication of her having any ability to calm or curb the mother’s dysregulated behaviour. The maternal aunt and maternal grandfather were placed in impossible positions whereby, logistics aside, in order to demonstrate their suitability as supervisors they would have to recognise the need and particular behaviours of the mother that required their need. They were unable or unwilling to do that as it was perceived as giving evidence that would be adverse to the mother’s case. I have no doubt that their primary desire was to provide opportunities of X to maintain a relationship with the maternal external family. That is quite a different thing to proper supervision and I was not satisfied that they understood that important distinction.
A treatment regime for the mother
I accept and adopt the ICL’s submission that:
[Dr B] opined that at a minimum, the Mother would need to engage with a treating psychologist and psychiatrist, to properly address her mental health issues. He supported a review of the Mother’s medications, and her ongoing engagement with the [T Program]. He gave evidence that unless and until that was done and dramatic improvement in the Mother’s mental health presentation was observed following such interventions, [X] was at risk of psychological and emotional harm, in the context of interactions with her Mother. [Dr B] opined that until such steps were taken by the Mother, [X]'s time with the Mother ought to remain supervised; a view which was supported by [Dr F].
In their respective final orders sought, the mother and the father each set our regimes for the mother’s treatment and steps towards mitigating the risk of harm that she presents. In my view, the mother does not believe that it is warranted or necessary and that she has no intention of doing anything beyond what is a defined step towards clearing obstacles in her path. Attempting to prescribe a treatment and reporting pathway as a predetermined measure to mitigate risk is speculative at best. Particularly in these circumstances, it also invites mischief by causing the decision as to what is in X’s best interests to be impermissibly relegated to the father or a treatment provider.
RELATIONSHIPS WITH EACH PARENT
The third issue of what arrangements may provide the child with the benefit of having a meaningful relationship with both of her parents can be dealt with when considering the primary consideration at s 60CC(2)(a).
I find X has the benefit of a meaningful relationship with the father and will continue to do so. I make that finding because the father presents no risk of harm to X and X will continue to live with her father in arrangements and circumstances that she is familiar with and which have proven to be of benefit to her and to meet all of her needs.
I find that X has a relationship with her mother that has been of benefit to her in the past and there is a possibility of a benefit to that relationship in the future that is worth pursuing – providing of course that it does not subject or expose X to harm.
I have found that if X were to live with or spend unsupervised time with the mother, she would be subject to or exposed to an unacceptable risk of psychological harm which outweighs the possible benefit of maintaining her relationship with the mother. I have also found that professionally supervised and limited time with the mother would sufficiently mitigate the risk to enable her to maintain her relationship with her mother.
ADDITIONAL CONSIDERATIONS
I have had regard to the additional considerations at s 60CC(3) of the Act.
In relation to the views and wishes of X, I accept and adopt the ICL’s submissions (references omitted) that:
38. The ICL acknowledges that [X] has previously (in the context of the Family Report preparation process) expressed the view that she wishes to return living with her Mother. The ICL also acknowledges that ordinarily, given [X]'s age, some weight would be afforded to that view. However, the ICL submits that in this case, limited weight should be afforded to [X]'s view, for the following reasons:
(a) The [mother’s own] evidence suggests that as recently as 7 September 2023, [X] has expressed to her Mother that she no longer wishes to live with her, because the Mother is critical of her ([X]);
(b) The evidence suggests the Mother has involved, and has continued to involve, [X] in the parental dispute, by conveying to [X] (amongst other things) that she was constantly monitoring her phone during her relationship with the Father because she did not want to anger him; that the Father was a narcissist who was incapable of loving her ([X]); had discussed with [X] the allegation of the Father having engaged in unwanted sex with the Mother; requiring [X] to undergo an Evidence in Chief Interview with the police, and then questioning her about whether she had made disclosures to the police about “unwanted sex;” giving advice to [X] to run away from the Father; denigrating the Father; and involving the child in the implementation of Orders such that the child gave the Mother advice not to breach Court orders in relation to telephone contact;
(c) The expert evidence of [Dr F], which makes clear that caution should be exercised in placing weight on [X]'s views in light of the likelihood of this view having been influenced by the Mother, [X]'s inability to provide context or explanation for her views, and her impressionable age and immaturity; and
(d) The expert evidence of [Dr F], which indicated that there was limited risk to [X] associated with not taking into account her views when making final orders.
The balance of the additional considerations did not feature greatly in this case. I accept and adopt the father’s submissions (references omitted):
Nature of the Relationship of the child with each parent
60. The Father acknowledges that the child has a close relationship with both her parents, however, due to the Mother’s conduct, he deposes to the child experiencing difficulties at times in her interactions with the Mother. Those are evident in the communications the child has with the Mother.
61. The Father deposes to having a close relationship to the child and that she has settled into his primary care since June 2022. That evidence has not been credibly challenged by the Mother, and in any event, the Father submits his evidence ought to be preferred by the Court.
Extent the child’s parents have taken or failed to take the opportunity to participate in decision making
62. The Father was allocated sole parental responsibility for the child pursuant to Orders made on 26 September 2022. It is submitted that the Father has exercised decision making appropriately and diligently since that Order was made, despite the antagonism of the Mother, particularly in relation to medical decisions. The Father relies on his account of those matters.
63. The extent to which the Mother has taken the opportunity to participate in decision making has been limited by the sole parental responsibility order, and other injunctions made on 26 September 2022, which the father submits are entirely appropriate and necessary given her conduct.
Obligations to maintain the child
64. While the Mother’s criticisms of the Father are wide-ranging, there is no credible evidence from either party that supports a contention that the child is not properly maintained.
The likely effect of changes in the circumstances of the child
65. The arrangement that the Father proposes on a final basis is consistent with the arrangements that have been in place for the child since 26 September 2022. There remains scope for the parties to agree to the child spending additional time with the Mother, however, based on the Mother’s current presentation, the Father does not consider unsupervised time or time supervised by family or friends as being sufficiently protective of the child, or in the child’s best interests.
66. Should the Court make orders consistent with the Mother’s application, it will result in a significant change in the circumstances of the child, midway through 2024, when supervision is discharged. The father submits that such a change, having regard to the Mother’s mental health and escalating and extreme behaviour, has the potential to be harmful and a significant change for the child. This is not a change that the Father supports.
Practical difficulties
67. [C Child Contact Service] have been providing supervision services to the Mother for several months. There is no evidence before the Court that suggests that this service cannot continue, and on that basis the Father submits that there is no practical difficulties with the Orders he is seeking on a final basis.
Parental Capacity to provide for the child’s needs
68. The Mother’s parental capacity is central to this case. The father relies on the submissions above, with respect to this issue.
Maturity, sex, lifestyle and background of the child’s parents
69. Both parties acknowledge the cultural heritage from their respective families, including [Country Z] and [Country AA]. The Father submits that this aspect of the child’s heritage is positively encouraged and as such this is not a relevant consideration in the Court’s final determination.
Aboriginal or Torres Strait Island
70. Not relevant.
Exposure to Family Violence
71. The excessive focus of the Mother’s case is undoubtedly her repeated assertions of family violence, allegedly perpetrated by the Father on her and the Mother. The Father denies these allegations and sets out his evidence in response in his Trial Affidavit. It is submitted that the Court accept his evidence in preference to the Mother’s evidence.
72. These matters are addressed in above.
Least likely to lead to further proceedings
73. The Father accepts that due to the Mother’s conduct, and her pre-occupation with the perceived injustice she experiences, that there is the potential that she will bring further Court proceedings, irrespective of what orders are made in the current proceedings.
THE ORDERS
Orders 2 and 3 are made for the reasons set our herein.
Order 4 is an order for indefinite supervision that is effectively left entirely in the discretion of the father to “otherwise agree.” Such an Order was regarded by the Full Court in Malburon v Waldlow [2013] FamCAFC 191 as requiring the advancement of cogent reasons to justify it. In this case there has been consideration of utilisation of two alternative review mechanisms: 1) Upon the child reaching the age of 16, and; 2) The mother’s compliance with a prescribed treatment and reporting regime.
There was some consensus between Dr B and Dr F that the age a child may be expected to identify the harmful behavior and self-protect is around 16 years old. The following is extracted from cross-examination of Dr B by the ICL:
Q. Insofar as what you understand generally in psychiatry about the risk to the child as a function of age from exposure to these types of behaviours, do you consider that, for instance, by the time [X] turns 16 most adolescence at that age will have the requisite tools that they need to avoid it having such an impact as it could have at this particular age?---
A. Yes. I think that’s an important point and certainly by the age of 16 I would expect [X] to have the requisite tools. Again, the limitation is that I have not assessed [X] and – but I certainly would assume that that would be the case by the age of 16.
The following is extracted from cross-examination of Dr F by the ICL:
Q. If I turn then to when it might be appropriate to commence unsupervised time between [X] and her mother, do you agree with [Dr B]’s opinion that by 16 [X] will have sufficient skills to deal with the risks associated with the mother’s mental health presentation?---
A. I think it’s a little bit of a difficult question to answer, having not, I guess, seen [X] for a significant period of time. In terms of when I saw her at the assessment obviously a lot of things have happened for her in her world. Typically what we would say is that someone of the age of 16 would have that capacity, yes. The only thing I would say to that is whether she wants that responsibility at that time or still requires some level of, I guess, adult oversight because the risk that we might have of a child of that age bracket is that they still are feeling pressured by that parent to engage and there’s sort of no, I guess, fallback position for her to then have someone else take ownership of that.
Q. Yes. Okay. And, [Dr F], do you agree with [Dr B]’s opinion that, irrespective for what you’ve said about the age of 16 for [X] as a type of benchmark, that insofar as the risks associated with the mother, what would need to happen to decrease those risks is, at a minimum, those treatments that [Dr B] indicated, so [T Program], psychiatry, psychology and pharmaceutical medication?---
A. From my perspective, I would need to see a pattern of sustained change and capacity to regulate appropriately, to manage her communication with other people, to be respectful of others, and engage herself in an appropriate matter. I would need, again, it’s a pattern.
Q. And presuming – well, I presume from that answer, [Dr F], that what you really are looking at seeing is the behaviour change, but also the engagement and proper engagement with all those treatments?---
A. Correct. It’s not simply about attending, it’s also about showing a sustained engagement and pattern of change.
Q. Yes, okay. And in terms of that 16 year old benchmark if you like, would you consider it perhaps an appropriate way for the court to deal with the matter that [X]'s views and wishes be considered when she turns 16, but that it still be up to the father as to what the time arrangements might be like after that?---
A. Yes, yes. I would agree with that.
Accordingly, there is insufficient evidence to justify X reaching the arbitrary age of 16 as a suitable review mechanism. Instead, the evidence supports the order that provides for the father to agree otherwise with the ability to take into account the views and wishes of X, not only at 16 but at any age.
The final orders sought by the father at Exhibit A6, set out a very detailed regime for the mother’s treatment that were potentially a review mechanism. The father proposed the following orders:
1.That the Mother shall forthwith do all acts and things necessary to attend upon an experienced adult Psychiatrist (“Treating Psychiatrist”) for the purposes of providing treatment and management of any mental illness, disorder or other mental health issues, including but not limited to her Major Depressive Disorder, Anxiety and Personality Disorder.
2.For the purposes of the preceding Order:
a.the Mother shall provide the name and contact details of her Treating Psychiatrist to the Independent Children’s lawyer and the father, prior to her first appointment;
b.Upon compliance with the preceding paragraph, the Independent Children’s Lawyer shall provide to the treating Psychiatrist a copy of these Orders, a copy of the Family Report of [Dr F] dated 10 October 2022 and a copy of the Report of [Dr B] dated 7 February 2023, a copy of these Orders, and for that purpose, the Independent Children’s Lawyer is granted leave by the Court to do so;
c.The Mother should attend upon the Treating Psychiatrist on a regular basis and as directed by her Treating Psychiatrist;
d.The Mother shall comply with any reasonable directions and recommendations made by the Treating Psychiatrist in regard to taking medication, the implementation of evidence-based psychological strategies and any other treatment and/or management recommendations made by the Treating Psychologist;
e.The cost of the Mother’s attendance upon the treating Psychiatrist, including for the Report referred to herein, are to be met by the Mother;
f.On or after 1 February 2025, the Mother shall do all acts and things necessary to obtain a written assessment and report from her choice of the following psychiatrists:
i. [Dr B];
ii. [Dr BB];
iii. [Dr CC].
The costs of the assessment and report are to be shared equally between the Applicant and the Respondent.
g.For the purposes of the written assessment and report referred to at Order 15(f) 16(f) above the appointed psychiatrist shall be provided with the following documents and information:
i.The Report of [Dr B] dated 7 February 2023;
ii.The Family Report of [Dr F] dated 10 October 2022;
iii.A copy of these Orders and any Reasons for Judgement, and
iv.Any information and documentation from any psychologist or psychiatrist providing treatment to the Mother AND FOR WHICH the Mother shall provide her authority for the appointed psychiatrist to obtain that information and documentation including, but not limited to the following:
1.Details of the Mother’s engagement with the Treating Psychiatrist, including details of her attendances upon the Treating Psychiatrist;
2.A summary of the Mother’s progress regarding the treatment and management of her mental health, including whether or not she has complied with his or her recommendations;
3.Particulars of any medication prescribed to the Mother by the Treating Psychiatrist, including an overview of her responsiveness to that medication;
4.Particulars of any treatment provided by the Treating Psychiatrist to the Mother, and an assessment of her responsiveness to that treatment;
5.An assessment of the Mother’s current mental health, having regard to the assessment of her mental health contained at paragraph 84 of the Report of [Dr B] dated 7 February 2023, and;
6.An assessment of the ongoing management of the Mother’s mental health, including any recommendations for future treatment, medication and management.
3.That the Mother shall authorise and direct the Treating Psychiatrist to provide to the Father a copy of the Report referred to in the preceding Order at the same time as a copy is provided to her.
Prima facie, these orders presented two problems:
(a)Firstly, if the intention was to provide a pathway for the mother out of supervised time or limited time, significant difficulties arise with the validity of those orders as identified in Halloran & Keats [2023] FedCFamC1A 56;
(b)Secondly, if the orders were not cast in terms to avoid the Halloran & Keats problems, then there arises a real question as to what is the relevance of them where there is no other order that turns on the mother’s compliance with treatment.
The father’s advocate was alive to both issues and submitted that the relevance of the orders was to provide the mother with a pathway towards the type of thing that the mother would need to do in order for the father to potentially “otherwise agree” to alternative time – which is something that Order 4 provides for.
I see the benefit to the father with having something objective that he can rely on when faced with the inevitable requests from the mother that he will be receiving in the future on who knows what grounds. In my view however, it is problematic and inappropriate for those orders to be made because:
(a)It is clear that the mother has a complex psychiatric profile that is largely undiagnosed, potentially misdiagnosed and is a long way from an established treatment regime;
(b)It may be the case that the mother is unable to comply with those treatment orders which could then be perceived to operate as an indefinite bar;
(c)There may be circumstances that eventuate without compliance with those orders that nevertheless warrant agreement otherwise;
(d)It may be that even if the mother complies with those orders, the prevailing circumstances do not warrant agreement otherwise.
A further relevant point is that one of the grounds when considering a change of circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 is any reasons that were given for the orders that were made. In these reasons is the regime that at least the father envisaged as what the mother would be required to do in order to progress time with X. Without in any way binding future consideration, if it were the case that the mother met those requirements, it would be difficult for the father not to concede a significant change in circumstances.
The following extract from the Full Court of the Family Court’s decision in Betros & Betros [2017] FamCAFC 90 [at 13] applies to the circumstances of this case (references omitted):
It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted. Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows.
The Restraints at Orders 5-10 are made in the terms sought by the father and the ICL and are made for the reasons set out above pertaining to the likelihood of the mother’s demonstrated behaviours continuing and causing harm to X and in support of the mitigation measures.
Orders 11-14 facilitate the obtaining and retaining of X’s passport which is something that she is entitled to. I note that the mother has sought to have X placed on the international point of departure watchlist on the basis that she believes that the father intends to travel internationally with X. Firstly, as a parent with sole parental responsibility, international travel for X is something that the father does not require permission or agreement. Secondly, I do not accept the mother’s reasons for seeking to prevent international travel being that the father has assaulted X and the mother whilst overseas in the past, or, that it is indicative of grooming or some other nefarious activity. Thirdly, X ought to be able to experience the benefit of overseas travel.
OTHER APPLICATIONS
Since the making of the Order on 8 March 2023 prohibiting the mother from filing any further interlocutory applications without first obtaining leave, the mother filed the following applications:
(a)On 11 September 2023 – Seeking the appointment of a parenting coordinator, revocation of interim parenting orders, blood tests of the father and for the father to acknowledge his custody of X’s passport.
(b)On 20 September 2023 – Seeking confirmation that the father did not intend to travel with X to Country DD, the return of X’s passport to the mother and international travel be disallowed during the proceedings.
(c)On 16 October 2023 – Seeking the ICL be dismissed and a new ICL appointed, an apology from the ICL; to reopen property orders; an order as to whether the mother is to pay for Dr B’s cancellation fee and the appointment of a parenting coordinator.
On the grounds there were not urgent circumstances or issues of high risk and, the applications would be likely to unduly add to the length of the overall proceedings, leave was refused. Having been refused leave to file them these applications are not on foot so no orders are necessary in order to deal with them. Further, I am satisfied that the mother has had sufficient opportunity to address the issues raised in these applications at final hearing.
On 1 November 2023, the mother filed an application of a different character, seeking that: 1) The property consent orders be revoked; 2) The applicant pay the respondent 60/40 or a split as the Court finds reflecting what is fair and just; and 3) The issue of whether or not the property orders are fair and just be determined at the forthcoming trial. Also on 1 November 2023, in her Further Amended Response the mother sought that: “The consent orders are reopened, and overruled. They are replaced by the following orders which are just and fair, reflecting the principles in Kennon. An adjustment of 60:40 in favour of the respondent mother be made, from the orders made under duress on 15 December 2021.”
On 13 November 2023, the eve of final hearing, the mother filed a further application seeking that: 1) The property orders made 15 December 2021 be revoked; the applicant pay the respondent a 60:40 adjustment, reflecting what is fair and just; The Court make a costs order against the applicant, payable by his solicitor; and, The Court issue a warrant for the Proper Officer of EE Company.
On 13 November 2023, the eve of final hearing, the mother filed a further application seeking that: 1) The Court issue an Order for the extradition of The Proper Officer, EE Company for failure to comply with a subpoena, and 2) For material to be admitted into evidence prior to making a decision in this matter, once EE Company has complied with the subpoena.
Further to the mother’s non-appearance on the fourth day at final hearing, I dismiss the applications or parts of applications seeking to reopen property proceedings on the grounds that:
(a)Orders for a settlement of property of the marriage were made by consent prior to the commencement of these parenting only proceedings;
(b)To the extent that the application relies on “reflecting the principles in Kennon,” it has no prospects of success on the evidence duly admitted in these parenting proceedings;
(c)To the extent that the application relies on duress, it has no prospects of success on the evidence duly admitted in these parenting proceedings; and
(d)If the mother truly wishes to pursue this issue then she will need to make that application in the proper form and in a manner that provides for procedural fairness to the husband.
Further to the mother’s non-appearance on the fourth day at final hearing, I dismiss the other applications and other parts of applications on the grounds that:
(a)The mother has had sufficient opportunity to address the issues raised in these applications at final hearing and has failed to do so at all or failed in her prosecution of them;
(b)They are vexatious in character and would have unduly added to the length of the overall proceedings without assisting in determination of the real issues in this hearing.
I find that the allegations made towards the ICL and the solicitor for the applicant of incompetence and impropriety were without foundation and lacking any substance beyond the mother’s subjective belief and misconceived opinions.
Lastly, after the final hearing but prior to delivery of judgment, on 28 November 2023 the mother sought to file a further urgent Application in Proceeding seeking to: Amend the interim orders as per a document showing her many tracked changes; She be provided with a transcript of day four of the proceedings free of charge; The father be restrained from contacting the mother’s Country AA language tutor, and; Prescriptive orders as to communication with X. Leave was refused on the same grounds as the other applications set out at paragraph 112.
On a final basis, Order 16 is made accordingly.
I certify that the preceding one hundred and twenty (120) numbered paragraph is a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 30 November 2023
“ANNEXURE A”
File Name: Krupi & Krupi DATE: Final Hearing
File Number: CAC 664/2022 14 – 17 November 2023
Proceeding in personApplicant Counsel/Solicitor: / Mr Cameron (HCC Lawyers)
Respondent Counsel/Solicitor: Mr Taylor / Ms Pagan (Beven & Co)
ICL: Ms Harders / Ms Cruise (Legal Aid ACT)RECORD OF EXHIBITS
DATE EXHIBIT NO DESCRIPTION OF EXHIBIT TENDERED BY: Entered CT – initials & date 16.11.2023 A1 Affidavit of Mr Krupi filed 16.10.2023 AF KJ 22.11.23 16.11.2023 A2 Affidavit of Mr Krupi filed 14.7.2023 AF KJ 22.11.23 16.11.2023 A3 Email of 25.9.2023 at 11.21am to ACT Education Department person AF KJ 22.11.23 16.11.2023 A4 Email of 25.9.2023 at 11.27 to CYPS AF KJ 22.11.23 16.11.2023 A5 Affidavit of Ms Krupi filed 16.10.2023 AF KJ 22.11.23 17.11.2023 A6 Amended Minute of Orders Sought, marked 17.11.2023 A.M. AF KJ 22.11.23 16.11.2023 R1 Affidavit of Ms Krupi filed 7.7.2023, noting more photos to be provided at … 3 by email RM KJ 22.11.23 16.11.2023 R2 Affidavit of Ms Krupi filed 29.10.2023 RM KJ 22.11.23 17.11.2023 R3 Affidavit of Ms FF filed 26.10.2023 RM KJ 22.11.23 17.11.2023 R4 Affidavit of Ms GG filed 27.10.2023 RM KJ 22.11.23 17.11.2023 R5 Affidavit of Ms HH filed 6.7.2023 RM KJ 22.11.23 17.11.2023 R6 Affidavit of Ms HH filed 23.2.2023 (Maternal Grand Mother) RM KJ 22.11.23 17.11.2023 R7 Affidavit of Ms JJ filed 6.7.2023 (friend) RM KJ 22.11.23 17.11.2023 R8 Affidavit of Ms G filed 23.2.2023 (Maternal Aunt) RM KJ 22.11.23 17.11.2023 R9 Affidavit of Ms KK filed 23.2.2023 (Maternal Great Aunt) RM KJ 22.11.23 17.11.2023 R10 Affidavit of Mr LL filed 24.2.2023 (Maternal Grand Father) RM KJ 22.11.23 17.11.2023 R11 Respondent mother key dates for case outline, 18 pages RM KJ 22.11.23 16.11.2023 C1 Psychiatric Assessment Report of Dr B dated 7.02.2023 ICL KJ 22.11.23 17.11.2023 C2 Family Report of Dr F dated 10.10.2022 ICL KJ 22.11.23 17.11.2023 C3 Transcript of proceedings of 14 November 2023 from 2:00pm ICL KJ 22.11.23 17.11.2023 C4 ICL’s Tender Bundle ICL KJ 22.11.23 OTHER MATERIAL RELIED UPON
APPLICANT FATHER DOCUMENTS DATE FILED Further Amended Initiating Application 19.6.2023 Outline of Case Document 13.11.2023 Written submissions 24.11.2023
RESPONDENT MOTHER DOCUMENTS DATE FILED Further Amended Response 1.11.2023 Outline of Case Document 14.11.2023 Written submissions 24.11.2023
ICL DOCUMENTS DATE FILED Outline of Case Document 21.7.2023 Written submissions 24.11.2023 “ANNEXURE B”
EXTRACTS FROM APPLICANT FATHER’S WRITTEN SUBMISSIONS
FATHER’SCASE
(1)It is the Father’s case that the Mother poses an unacceptable risk of emotional and psychological harm to the child. It is the Father’s submission that the risk of harm to the child has not abated and that there has been an observable deterioration in her behaviour since these Court proceedings commenced on 12 April 2022, including during the trial itself.
(2)The Father relies on and accepts the expert evidence of Dr B, Psychiatrist and Dr F, Psychologist, regarding the Mother’s mental health (as contained in their respective reports and their oral evidence). The Father submits that both experts expressed unequivocal and ongoing concerns regarding the Mother’s mental health and how her conduct adversely impacts on the child. Both experts recommend ongoing supervision of the child’s time with the Mother as a way of protecting the child from the worst aspects of the Mother’s behaviour.
(3)The Father submits that the Mother’s mental health has not improved and, despite deposing in her Trial Affidavit: “I am vastly improved now, and I am properly medicated” (paragraph 6, page 5), her conduct during the trial suggests otherwise. The Father submits that the Mother remains incapable of regulating her impulses and her conduct remains highly aggressive, volatile and abusive. Her pre-occupation and belief that the Father is a danger to the child, permeates every aspect of the Mother’s current belief system, and the Mother repeatedly made it clear during the trial that she will never resile from those beliefs (“even after I am dead”).
(4)Notably, the Mother failed to put on any expert evidence by way of a Report from her Treating Psychiatrist regarding any treatment and management of her mental health conditions. This is dealt with further in these submissions.
(5)It is for these reasons, that the Father submits that it is in the child’s best interests for the time she spends with her Mother to be professionally supervised indefinitely.
THE MOTHER’S CONDUCT AT THE FINAL HEARING
(7)The Father submits that the Mother’s conduct during the final hearing cannot be overstated, providing the Court with clear evidence of her inability to control and manage her worst impulses. He submits that such conduct provides a unique illustration of the actual harm that the child could potentially be exposed to should the Mother’s time not be professionally supervised.
(8)The Father submits that there is sufficient evidence before the Court to comfortably find that the Mother’s behaviour is not confined, nor is it solely attributable to, the Court process itself. As detailed further below, the Mother’s underlying pre-occupation with the Father being a danger to the child, overwhelms her thinking, to the point where she is unable to shield the child from her distorted beliefs.
THE EVIDENCE
(16)The Father relies on his Trial Affidavits filed on 16 October 2023 (Exhibit A1) and 24 July 2023 (Exhibit A 2).
(17)Although the Mother was prevented from cross-examining the Father pursuant to the existing Section 102NA order, the Independent Children’s Lawyer cross-examined the Father.
(18)It is submitted that the Father answered questions honestly, and with candour, showing good insight. He made appropriate concessions and made no attempt to avoid any questions. The Father acknowledged the challenges he faces, being the primary carer of teenage daughter. Notably, the Father gave evidence that the most difficult of those challenges are his ongoing attempts to protect the child from the worst aspects of her Mother’s behaviour, and having to communicate and deal with the Mother, in circumstances where she is incessantly accusatory, belittling and hostile towards him.
(19)It is submitted that the Father is a witness of truth and that it is open for the Court to accept the totality of his evidence, both in his Affidavits and from the witness box.
(20)In contrast, it is submitted that the Mother’s evidence was deeply problematic.
(21)The Mother also relied on two Trial Affidavits, an Affidavit filed on 7 July 2023 (Exhibit R1) and an Affidavit filed on 29 October 2023 (Exhibit R2).
(22)It is apt to describe the Mother’s Affidavit evidence as a “stream of consciousness”. Accepting that the usual rules of evidence do not apply to child-related proceedings, the Mother’s Affidavit evidence is nonetheless replete with her opinions about a range of topics, unsupported conclusions, offensive comments, illogical theories, and a pre- occupation with trivialities.
(23)The Father submits that, rather than having any significant probative value that could seriously advance her case, both Affidavits provide cogent evidence of the Mother’s preoccupations and her “state of mind”. In a case where her mental health is a central issue relevant to the Court’s determination, her Affidavits do little to ease any concerns regarding the status and management of her mental health.
(24)The Mother’s oral evidence demonstrated her inability to control her impulses. Under cross-examination the Mother was evasive, agitated and, at times, abusive. She made baseless objections, refusing to answer relevant and often mundane questions. By way of example, when evidence of her own emails was put to her (namely, emails sent on 26 August 2022 – Annexure V of Father’s Affidavit 16 October 2023), the Mother was deliberately obstructive, denying recollection of the emails, or denying sending the emails, questioning whether the emails were complete, and challenging their meaning in a petty and nonsensical way. This culminated in the Mother denying that she was “encouraging” the child to run away; denying that she was “suggesting” that the child run away, and; denying that she was “inviting” the child to run away. Ultimately, the Mother had to be taken to her own Affidavit evidence on this subject, where she deposes that she “tried to get her” to run away. Even then, the Mother did not make a concession, and instead maintained her argumentative stance.
(25)Importantly, to the extent that the Mother may have attempted to convey insight and understanding in her Trial Affidavits, regarding her diagnosis, treatment and management of mental health issues, this was seriously undermined during the course of the hearing and, in particular, under cross-examination. Whereas the Mother deposes in her Affidavit to feeling a level of “embarrassment” regarding her past conduct before this Court, even deposing to having an “epiphany” regarding her treatment and attitude towards the Father, this position was quickly abandoned at the hearing and under cross- examination. The Mother emphatically returned to her longstanding position, that the Father was the perpetrator of serious family violence on her and the child, despite providing no substantiating evidence to support this conclusion.
(26)Even the “epiphany” deposed to in her Affidavit (at paragraphs 57, page 77 Exhibit R2) was recast by the Mother under cross-examination, to be a religious epiphany, where she “started to believe in God”, rather than being in response to her mental health treatment.
(27)The Father submits that where there is contradiction or any inconsistencies between the evidence of the Father and evidence of the Mother, the Court ought to prefer the evidence of the Father, based upon the prevaricating and self-excusing manner in which the Mother gave her evidence and the candid way the Father gave his evidence.
(28)Further, the Father submits that on the many occasions when the Mother refused to answer questions under cross-examination that the Court draw the inference that her answers would not assist her case and indeed, not only may it call her credibility into question but that significant caution ought to be exercised regarding the Mother’s evidence overall (Devries v Australian National Railways Commission HCA (1993) 177 CLR 472).
EXPERT EVIDENCE
(29)Dr B met with and made a mental health assessment of the Mother contained in his Report dated 7 February 2023 (Exhibit C1). Dr B was cross-examined by the ICL, the Father and the Mother.
(30)In summary, in his Report Dr B described the Mother as having a “Major Depressive Disorder with anxious distress, recurrent episodes, in partial remission, on the background of a Personality Disorder” (Paragraph 78, page 14). He described the severity of her mental illness at that time as being in the “moderate range.” (Paragraph 80) and he noted that given the “complexity of the mother’s presentation, her ongoing management is best directed to an experienced adult psychiatrist.” (Paragraph 84).
(31)During his oral evidence, noting that Dr B had read the respective Trial Affidavits and a Transcript of Proceedings for the afternoon session on the first day, as well as observe the Mother’s conduct while he gave evidence, he expressed concerns regarding a worsening of the Mother’s condition. He noted that he considered the Mother’s conduct, as reflected in the Transcript, as being “highly concerning”. He opined that he had reservations about the treatment the Mother was currently receiving, the Mother purportedly being diagnosed with Attention Deficit/ Hyperactivity Disorder (ADHD) and being prescribed stimulant medication.
(32)In relation to the issue of the child’s time with the Mother, Dr B agreed that given the Mother’s current presentation her time should stay supervised and that it would pose a risk to the child if the time was unsupervised. Amongst those risks, Dr B suggested that there is a risk that, having regard to the Mother’s fixations, that the child would learn not to challenge her Mother the more time she spends with her.
(33)Dr B was taken to emails sent by the Mother on 21 September 2023, where she expresses concern that the Father will kill X and her (Annexure WW of Exhibit A1, pages 242-244). Dr B was also taken to an Affidavit filed by the Mother on 16 October 2023 (Exhibit A5), where the Mother deposes to the Father being a “grooming risk” to the child. This evidence heightened Dr B’s concerns regarding the Mother’s behaviour, as did her evidence that she does not resile from those views.
(34)It is submitted by the Father that Dr B’s evidence be accepted in its totality, and that significant weight be placed on the concerns and risks to the child expressed by Dr B, regarding the Mother’s worsening behaviour.
(35)Noting Dr B’s concerns expressed in his oral evidence regarding the Mother’s current psychiatric treatment, including concerns about the diagnosis of ADHD and her taking stimulant medication, the Father submits that the Court place significant weight on the Mother’s failure to put expert evidence before the Court of her treating Psychiatrist. The Father submits that the Court draw a negative inference from this omission, including that this evidence would not assist her case. Further, it is the Father’s submission that no weight be placed on the Mother’s lay evidence in her Affidavits that she has “vastly improved” and is “properly medicated”. Not only does this contradict her behaviour in Court, her complete lack of insight as to how her conduct is perceived by others, and the severity of those outbursts, further highlights the escalation of her condition.
(36)Dr F prepared a Family Report dated 10 October 2020 (Exhibit C2). As part of her preparations for the Report, Dr F met and interviewed the Mother, Father and the child.
(37)Dr F was cross-examined by the ICL and the Father. She was not cross- examined by the Mother, due to the Mother not being present for most of the final day of the hearing (addressed further in these Submissions).
(38)The Father submits that significant weight be placed on Dr F’s expert opinion, as expressed in her written Report and her oral evidence. Dr F prepared a thorough and comprehensive Report, which included a detailed analysis of external material provided to her (including S69W material from the AFP and CYPS and subpoenaed material).
(39)Like Dr B, in her Report Dr F expressed significant concerns regarding the Mother’s “psychological health and the flow on effect for [X]”. When describing the Mother, Dr F noted that she “exhibited cognitive distortions and expressed inconsistent, and at times, conflicting or paranoid views.” (paragraph 334, page 62).
(40)Having read her Trial Affidavits and the Transcript of Proceedings, in answer to questions put to her, Dr F agreed that there should be some form of supervision of the child’s time with the Mother. Initially her position was that the supervision not necessarily be professional. Following further questions, including questions about the need for the supervisor to intervene if the Mother was exhibiting dysregulated, violent and abusive behaviour during a visit, Dr F accepted that she was more comfortable with a professional supervisor as compared to a familial supervisor. Dr F acknowledged that it may pose difficulties for a family member to intervene or terminate a visit in the context of the Mother’s behaviour.
(41)In relation to telephone and video calls, Dr F agreed that if the Father exhibits insight of the dynamic between the child and the Mother, and can manage the calls, it would be an appropriate protective measure. Dr F also suggested that the child would benefit from counselling in that regard.
(42)The Father submits that, even though Dr F had not met with the Mother (or the child and Father) since 11 August 2022, there is ample evidence to suggest that the conditions that informed her expert opinion at that time about the Mother, including her cognitive distortions and conflicting and paranoid views, remain present to this day. Further, he submits that the Court accept her unequivocal opinion that the child’s time continue to be supervised, and based on the difficulties expressed by Dr F, that it is not a family member.
EVIDENCE OF MS G AND MR P
(43)Ms G is the Mother’s sister. She filed an Affidavit on 23 February 2023. She was cross-examined by the ICL and the Father.
(44)The Father submits that while Ms G attempted to truthfully give evidence to support her sister, little weight ought to be placed on that evidence. Notably, Ms G gave oral evidence that she would travel from Melbourne to Canberra each fortnight to supervise the child’s time with the Mother. She conceded under cross-examination that this “proposal” was not otherwise in evidence before the Court and that she shared it for the first time in the witness box. Ms G seemed unable to readily concede that it was unrealistic for her to travel to Canberra each fortnight, and it is submitted that her evidence on this subject was implausible. The Father further submits that, although Ms G may not share the same degree of concerns about the Father as the Mother, she is sufficiently aligned to the Mother’s cause, including her belief that the child should spend equal time with each parent, that it severely undermines her objectivity. The Father submits that the Court should have some concerns about Ms G being an appropriate supervisor, on the basis that Ms G appeared not fully attuned to the Mother’s difficulties, and it could compromise her ability to intervene to protect the child.
(45)Mr P is the Mother’s father. The Father accepts that Mr P gave candid evidence. However, given the serious issues before this Court surrounding the Mother’s mental health and her conduct, little turns on his evidence, other than he seems less embroiled in his daughter’s pre-occupations.
CONCLUSION
(74)The Father acknowledges that the current state of the Mother’s mental health and her lack of insight as to how her own conduct has impacted on aspects of her life, including her relationship with the child, is in many respects a tragedy. At present, there is no evidence that suggests that the Mother is capable of addressing these issues in a genuine and meaningful way, nor is there evidence of the Mother having any genuine insight. It is for this reason that the Father seeks final orders that prioritise the safety of the child, with the potential for the parties to agree on additional time, should the Mother’s condition improve.
(75)Given the extreme conduct of the Mother during the trial, which the Father submits cannot be overstated, the Father accepts that it is open to the Court to make final orders that do not include the treatment orders he seeks, or the additional time orders by agreement. The Father accepts that such Orders are premised on a level of optimism that may no longer be appropriate, given the Mother’s behaviour, and in that regard, he is in the Court’s hands.
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