Ladbrook & Dodd
[2021] FedCFamC2F 532
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ladbrook & Dodd [2021] FedCFamC2F 532
File number(s): HBC 723 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – parenting – parental responsibility – presumption rebutted – father to have sole parental responsibility subject to consultation with mother
FAMILY LAW – parenting – with whom a child lives – where father is not child’s biological father – where child has been in father’s primary care – where mother has history of drug use and mental health issues – child to live primarily with father – mother’s time with the child to progress to unsupervised and significant time
FAMILY LAW – parenting – child’s name – where mother’s views require promotion of father’s role – hyphenated surname to be used – to promote relationship with both parents and sense of belonging to non-biological father’s family
FAMILY LAW – property
Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss 60B(1), 61B, 60CC, 64B, 65DAA, 65DAC, s79
Cases cited: Aldridge & Keaton (2009) FLC 93-421
Beach and Stemmler (1979) FLC ¶90-692
Bulow and Bulow [2019] FamCAFC 3
Chapman and Ladbrook (1978) FLC ¶90-510
C & C (2005) FLC 93-220
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA1346
Marriage of Hickey 30 Fam LR 355
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
AJO & GRO (2005) FLC ¶93-218
Rankin & Rankin (2017) FLC ¶93-766
Slater & Light [2011] FamCAFC 1
Stanford and Stanford [2012] HCA 52
Wagstaff and Wagstaff [2018] FCCA 927
W & W [2005] FamCa 430
Division: Division 2 Family Law Number of paragraphs: 259 Date of hearing: 20-21 & 27 September and 8 & 18 October 2021 Place: Hobart Counsel for the Applicant: Ms M Ryan Solicitor for the Applicant: Butler McIntyre & Butler Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke Counsel for the Independent Children’s Lawyer: Ms S Watson Solicitor for the Independent Children’s Lawyer: Legal Aid Commission of Tasmania ORDERS
HBC 723 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LADBROOK
Applicant
AND: MR DODD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
Parenting Orders
(1)All previous orders concerning X born in 2016 (“the child”), are discharged.
(2)MR DODD (“the father”) have sole parental responsibility for the child subject to Order 3 hereof.
(3)Notwithstanding order (2), the father shall consult with MS LADBROOK (“the mother”) in relation to decisions concerning the child’s long-term care, welfare and development and seek to reach agreement with him. Should the father and mother fail to agree and subject to any subsequent court order, the father’s decision in relation to such issue/s will apply, and the filing of a subsequent application by the mother seeking judicial determination of the issue/s shall not prevent the father from in the first instance making a decision pursuant to this order.
(4)Until 25 December 2021 the child live with the father, and spend time with the mother as follows:
(a)From 11am until 3pm on Sunday 12 December 2021;
(b)From 11am on Saturday 18 December 2021 until at 3pm Sunday 19 December 2021; and
(c)From 6pm on Friday 24 December 2021 until 2pm on Saturday 25 December 2021.
(5)From 26 December 2021 until 1 February 2022 the child live with the father, and spend time with the mother as follows:
(a)From 11 am on Sunday 2 January 2022 until 11am on Tuesday 4 January 2022;
(b)From 11 am on Sunday 16 January 2022 until 11am on Tuesday 18 January 2022; and
(c)From 11 am on Sunday 30 January 2022 until 11am on Tuesday 1 February 2022.
(6)Commencing on Tuesday 1 February 2022 until 1 July 2022, the child live with the father and otherwise spend time with and live with the mother as follows:
(a)In week 1, from 3.00pm Friday 11 February 2022 until 3pm Sunday 13 February 2022 and every alternate weekend thereafter; and
(b)In week 2, between 3.00pm and 6pm on Wednesdays, and every alternate week thereafter.
(7)Commencing on Friday 1 July 2022 until February 2023, the child live with the father and otherwise spend time with and live with the mother as follows:
(a)In week 1, from 3.00pm Fridays until commencement of school on Mondays or 9am on a non-school day, and every alternate week thereafter; and
(b)In week 2, between 3.00pm on Wednesdays until commencement of school on Thursdays, or 9am on a non-school day, and every alternate week thereafter.
(8)Commencing on February 2023 and fortnightly thereafter, the child live with the father and otherwise spend time with and live with the mother as follows:
(a)In week 1, from 3.00pm Fridays until commencement of school on Tuesdays or 9am on a non-school day, and every alternate week thereafter; and
(b)In week 2, from 3.00pm on Wednesday until commencement of school on Thursdays or 9am on a non-school day, and every alternate week thereafter.
(9)Until 28 February 2023, it is a condition of the child spending time with and living with the mother that she sleeps overnight at the maternal grandmother’s home, unless agreed otherwise by the father in writing.
(10)Changeover is to occur at the conclusion and start of school and at the child’s school whenever it occurs on a school day and otherwise will occur at a location to be agreed between the parties in writing.
(11)The child spend time with each parent on special occasions as agreed between the parties, and failing agreement as follows:
(a)Mother’s Day: if the child is not otherwise in the mother’s care, with the mother from 5.00pm the night before Mother’s Day to 3.00pm Mother’s Day;
(b)Father’s Day: if the child is not otherwise in the father’s care, with the father from 5.00pm the night before Father’s Day to 3.00pm on Father’s Day;
(c)In odd numbered years for Christmas, with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the father from 3.00pm Christmas Day to 3.00pm Boxing Day.
(d)In even numbered years for Christmas, with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 3.00pm Boxing Day.
(e)The child’s birthday: with the parent who does not otherwise have care of her that day from 3.00pm until 5.00pm;
(f)Easter: with the father from the conclusion of school on Thursday until 5.00pm on Easter Saturday and with the mother from 5.00pm on Easter Saturday until 5.00pm Tuesday.
(12)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2016, the mother MS LADBROOK is restrained by injunction from consuming alcohol or any illicit drugs or substances while the child is spending time or living with the mother.
(13)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2016, whilst the child is living with or in the care of the mother MS LADBROOK, the mother is restrained by injunction for the personal protection of the child, from permitting the child to be in the presence of any person who is affected by alcohol such that they are over a blood alcohol concentration (BAC) level of 0.05 grams of alcohol per 100ml of blood or under the influence of illicit drugs, and the mother must immediately remove the child from the presence of persons so influenced.
(14)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2016, whilst the child is living with or in the care of the mother MS LADBROOK, the mother is restrained by injunction from permitting the child to be in the presence of Mr B during the period for which there is any Family Violence order in place against him for the protection of the mother, and the mother is to cause the child to be immediately removed should Mr B make himself present.
(15)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X born in 2016, the mother MS LADBROOK is restrained by injunction from denigrating or speaking negatively about the father, his extended family or his partner within the child’s hearing, or allowing the child to remain in the presence of any third party who is doing so.
(16)The mother is to engage in regular psychological treatment with Ms H or another suitably qualified clinical psychologist and follow the psychologist’s treatments and recommendations; to facilitate such treatment the mother may provide to the treating psychologist a copy of the report of Dr C.
(17)The mother and father must keep the other informed of their preferred mobile and email contact information and residential address.
(18)The mother and father will do all things necessary to ensure both are each named on the child’s:
(a)school or extra-curricular enrolments and a direction is provided to the children’s school that both parents are primary contacts for the child and that each parent is to receive school notifications, including in the event a child is unwell; and
(b)medical, health and allied health service contact and/or consent authority.
(19)The mother and father are each entitled to both attend any and all school events and extra-curricular activities and sporting events involving the child, that parents normally attend including but not limited to:
(a)Parent teacher interviews;
(b)School sporting events; and
(c)Non-school extra-curricular events.
(20)The mother and father are to each inform the other as soon as practicable of any hospitalisation, significant injury or health problem suffered by the child and details of any treatment received or medication prescribed by the child whilst under their respective care.
(21)The mother and father are to communicate with each other by using a communication app agreed by them and in default of agreement the Our Family Wizard app; and the cost of such app is to be shared equally by the parties with:
(a)the father paying the initial annual subscription;
(b)the mother the next annual subscription; and
(c)alternatively paying the annual subscription renewal thereafter.
(22)Within 6 weeks of the date of these orders, the mother and father are to enrol in the Parenting Separately Course through D Counsellors and must provide a copy of confirmation of their enrolments and evidence of completion of the course to the other party by email.
(23)These Orders act as an authority for the parents to request and obtain any educational or medical information, record or file relating to the child that each are lawfully entitled to obtain. Each may provide a copy of the orders to the child’s school and treating medical practitioner.
(24)Subject to legal aid funding, the appointment of the ICL is to continue for 12 months.
THE COURT DECLARES THAT:
(25)It is in the best interests of the child X born in 2016 to be known as X LADBROOK-DODD.
THE COURT ORDERS THAT:
(26)Each of the mother and father henceforth exclusively use LADBROOK-DODD as the surname of the said child, and not cause or permit any other person to use any names other than X LADBROOK-DODD as her name.
(27)The father is authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as X DODD to X LADBROOK-DODD, and the said Registrar do register the said child’s name as X LADBROOK-DODD.
(28)The father do all such acts and things and sign all such documents as may be required to give effect to these orders.
(29)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X LADBROOK-DODD born in 2016, the mother MR DODD is restrained by injunction, from referring to the child by any name other than X LADBROOK-DODD.
THE COURT DIRECTS THAT:
A.A sealed copy of these orders be served by the father upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them.
THE COURT ORDERS THAT:
(30)Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the child X LADBROOK-DODD born in 2016, the mother MS LADBROOK and father MR DODD are restrained by injunction from discussing with the child or any other person in the child’s presence or hearing the identity of her biological father until the following conditions are met:
(a)The mother and the father attend family dispute resolution to reach agreement about when and by whom the child should be informed about her biological father; and
(b)Such family dispute resolution is not to occur before the child attains 12 years of age.
AND THE COURT NOTES THAT:
A.In the event that mother and father cannot reach agreement pursuant to Order 30 after the child attains 12 years of age, either party may apply to the Court to vary Order 30.
THE COURT ORDERS THAT:
Property Orders
(31)The maternal grandmother MS E be paid the sum of $20,000 from the funds held in trust at Butler McIntyre Butler and such payment be in full and final satisfaction of the father’s indebtedness to her.
(32)The father retain and be solely entitled to the Motor Vehicle 1, the Motor Vehicle 2 and any balance funds in his Bank F Account.
(33)The balance funds after the payment referred to in Order 30 and allowance for the $12,000 value of the assets retained by the father pursuant to Order 31, be divided to achieve a 47% apportionment of the net non-superannuation assets to the mother and the balance to the father.
(34)Any interest accrued on the funds held in the trust account at Butler McIntyre Butler, be divided and paid 47% to the mother and 53% to the father.
(35)That the solicitor for the father forthwith seek procedural fairness from Super Fund G in the following terms:
(a)In accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the father’s interest (member number: Accumulation SPRN …) in the Super Fund G Superannuation Fund (“the superannuation fund”), the mother is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulation 2001 (Cth), using the base amount of $36,672.40 and there be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for these orders;
(b)That having been accorded procedural fairness in relation to the making of this order, this paragraph binds the trustee of the superannuation fund; and
(c)The operative time for this paragraph is four (4) business days after the date of service of an original certified copy of the orders on the trustee of the superannuation fund.
(36)The father is hereby restrained from accessing or drawing down on his/her superannuation entitlements pending a superannuation split with the mother pursuant to Order 34 herein.
(37)Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to these orders within fourteen (14) days of receipt of a written request to do so.
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 Ladbrook & Dodd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION
These proceedings concern X Ladbrook born in 2016 (“the child”). Ms Ladbrook (“the mother”) commenced the proceedings in September 2018. The Respondent to the proceedings is Mr Dodd (“the father”), who was in a relationship with the mother for several years. The parties disagree about the date their relationship commenced. It was agreed that the father is not the biological father of the child, but has been her primary carer since February 2018.
The mother is now 30 years old. She has a younger child, J born in 2021 (the “younger child”), who lives primarily in her care. The younger child’s father is Mr B.
The father is now 34 years old. He is involved with the care of his disabled adult brother, and has been more involved since the passing of his mother. He shares this responsibility with his sister.
At the time of the hearing, which took place over the course of five days in September and October 2021, both parties were represented by counsel. An Independent Children’s Lawyer (“ICL”) had been appointed for the child and Ms Watson appeared as counsel for the ICL.
BRIEF OUTLINE
The mother sought parenting orders in her Initiating Application filed 6 September 2018. The father opposed the orders sought by the mother and by his Response, filed 30 October 2018, sought both parenting and property orders.
In May 2015, the parties purchased a property at K Street, Town L in Tasmania (“the property”) and they lived together in the home before and after the child was born until February 2018. The parties agreed that from May 2015 until at least June 2017 they were in a de facto relationship.
The course of these proceedings have been quite prolonged and the mother's time with the child has been relatively limited and largely supervised. As is apparent from the case outlines and evidence of each party, there is controversy about the reasons for the mother only spending limited time with the child.
The parties each sought orders for equal shared parental responsibility for the child. It was common ground that the father was not the biological father of the child, but had been named as the father on the child's birth certificate. Post separation, the mother had changed the child’s surname on the birth certificate by making application to the Registrar of Births, Deaths and Marriages.[1]
ORDERS SOUGHT
[1] Affidavit of the mother filed 22 March 2021 at [35] and [36].
The Mother
In her Case Outline filed 17 September 2021, the mother sought that:
·The parents have shared parental responsibility for the child;
·The child live with the father and spend time with the mother progressing to live equally with the parties until school term 4 in 2024;
·There be specific arrangements for special occasions.
She also sought extensive injunctive orders about denigration, substance consumption, exposing the child to family violence, or discussing the child’s parentage with her without agreement.
As to property, the mother sought a division of the proceeds of sale of the property of 55 per cent in her favour, orders for retention of personal property and savings by the parties, and an equalisation of superannuation between the parties.
The Father
The father filed a Case Outline on 16 September 2021, in which he sought that:
·The child’s name revert to the one which was registered at the time of her birth, and the mother be restrained from changing it;
·The mother be restrained from discussing the child’s paternity within the hearing of the child without the father’s consent;
·The child live with him and spend time with the mother each alternate weekend from Friday to Sunday and each alternate Thursday night; and
·There be specific arrangements for special occasions.
As to property, the father sought a division of the proceeds of sale of the property of 80 per cent in his favour.
The Independent Children’s Lawyer
The ICL contended in her Case Outline filed 17 September 2021 that the father should have sole parental responsibility in relation to the child and that the child should live with him. No specific contentions were made in relation to the amount of time the child should spend with the mother or the child’s surname.
THE PARTIES’ EVIDENCE - PARENTING
The Mother
The mother relied upon her Amended Initiating Application filed 28 May 2021 and a number of affidavits, being:
·Affidavit of the mother filed 22 March 2021;
·Affidavit of Ms M filed 12 August 2020;
·Affidavit of Ms N filed 12 August 2020;
·Affidavit of the mother filed 14 September 2021; and
·Affidavit of her mother Ms E (“the maternal grandmother”) filed 12 August 2020 and 17 September 2021.
All of these affidavits were read in evidence unopposed and each of the mother’s witnesses were subjected to cross-examination.
During the course of the proceedings, the parties had participated in interviews for the preparation of a Family Report authored by Court Child Expert Ms O[2] (“the Family Reporter”) and a psychiatric court expert report (“the single expert report”).[3] The mother relied on neither of these the reports, but cross-examined the authors of them. The reports were tendered in evidence by the father, who relied upon the respective opinions.
[2] Dated 3 March 2020.
[3] Report of Dr C filed 23 September 2021.
As part of the mother's case, her counsel tendered a letter dated 18 September 2021 from Ms H, a clinical psychologist, referring to the treatment the mother had initiated for her mental health.[4] The letter represents that the mother commenced seeing Ms H on 5 February 2021 and had seen her monthly since then. The mother gave evidence that she would continue to regularly see Ms H.
[4] Exhibit A-1.
The mother gave evidence that after receipt of the single expert report, she had engaged with the expert’s recommendations and also attended P Counsellors for counselling and continued to do so. She stated under cross-examination that this attendance was for support relating to family violence and not for drug issues.
The mother was cross-examined in great detail by counsel for the father. The salient aspects of her evidence under cross examination were as follows:
(a)That she had told the father during the pregnancy that he was not the biological father of the child and that Mr Q (“the biological father”) was the biological father;
(b)That the father had insisted that he be named as the child's father on the birth certificate and that she felt pressured and controlled, so agreed;
(c)That after the child’s birth, the father took some time off work for a period of two months and assisted somewhat in caring for the child, but she was the main carer;
(d)That the parties separated in June 2017, but continued to reside under the one roof until February 2018;
(e)That following the incidents occurring on Hobart Cup Day in 2018, the father left the property, went to live at his mother's house and withheld the child from the mother. The mother says that the father refused to allow her to spend any time with the child. She frequently referred to the father having “kidnapped” the child;
(f)That although the parties had agreed for the mother to regularly spend time with the child at the Hobart Children’s Contact Centre, this did not eventuate after April 2018 as there was a dispute between the mother and the staff at the Centre;
(g)That between April 2018 and February 2019, the mother had no or exceptionally limited time with the child;
(h)After interim orders were made on 8 February 2019, the mother commenced spending supervised time with the child at R Centre two times a week for approximately three hours;
(i)That she formed a relationship with Mr B in January 2019, to whom she later had her youngest child, born in 2020;
(j)That she separated from Mr B in July 2020 following an incident resulting in a Police Family Violence Order being made for her protection;
(k)That she continued only having supervised time with the child throughout the course of these proceedings despite complying with every requirement made of her and undertaking drug testing. She said that despite this, the father had refused to permit her to have increased time overnight; and
(l)That the father had unreasonably refused to comply with orders made on 30 November 2020 for her to have increased time overnight with the child, and there was no legitimate basis for the father refusing.
Cross examination of the mother also heavily focused on the contents of various medical records that had been considered to by Dr C (“the single expert”) and were the subject of opinions he had expressed in his report dated 17 September 2020.
The mother denied that she continued to use cannabis and stated that she had ceased using it for the last two years, giving up when she was pregnant with the younger child.
The mother agreed in general terms with the much of the history set out in the single expert report, but often qualified things, exaggerated or made statements excusing or diminishing what were likely to be interpreted as egregious.[5] She said she had been “young and silly” and “made poor choices” when asked about becoming pregnant at age 14.[6] She also agreed that the child had not been planned with the biological father and that she had not used contraception, but was happy to become pregnant on both occasions.
[5] See, for example, paragraphs [23]-[39], [43] and [48] of these reasons.
[6] This pregnancy was subject to termination.
She agreed that her relationship with the biological father was “fleeting” and when she was in a relationship with the father. Regarding Mr B, father to the younger child, she agreed that the pregnancy was not planned and that there had been difficulties early in her relationship with him. However, she denied that he had been violent towards her and said that her relationship with him now was improved, adding that Mr B “had a role in [the younger child]'s life and upbringing”.
The mother agreed that she was a regular user of cannabis during her relationship with the father, usually before bedtime. But she disputed that she used it to the extent reported at paragraph 13 of the single expert report. Particularly, she disputed that she had told the single expert that she had previously been reliant on cannabis.
It was put to her that she spent $100 per day on cannabis for the 10 year period, but she denied this. She stated that it may have been $100 and rarely $150 per week at the end of the relationship, but not for all of the 10 years, and that she only used when she could afford it. She denied that the father had problems with her continuing to use of cannabis throughout the pregnancy and after the child's birth.
Referring to $100 to $250 worth of cannabis reported at paragraph 82 of the single expert report, the mother stated that “the wording was all wrong and it's all over the place”.
It was put to her that she had not been truthful when she told the single expert that she had ceased using cannabis 18 months prior to her interview with him. She stated she would have been truthful and that she had not touched any cannabis since she became pregnant with her younger child.
The mother agreed that when she went out drinking she would at times take drugs other than cannabis, usually tablets, and did not necessarily know what they were. She denied that she used amphetamines, stating that she thought they came in needles rather than tablets.
The mother admitted that she had tested positive for amphetamine use shortly before the father took the child into his care in February 2018, but she maintained that she could not remember what she had taken.
Counsel for the father cross-examined the mother about alleged excess alcohol use, suggesting she regularly drank to excess. The mother denied this, stating that she would only go out once or twice per year and that it was not her “thing” to go out and drink. Despite this evidence, she agreed that she had gone out and had a big day and night on the occasion of the Hobart Cup in 2018. She stated that she had only done this “a couple of times in her life."
When cross-examined about paragraph 78 of the single expert report, the mother claimed that the history recorded concerning her use of MDMA and drinking alcohol was incorrect. She stated that she did binge drink three or four times a year, but did not use MDMA. When it was put to her that she regularly consumed 20 drinks during weekends at the time referred to in the single expert report, the mother disputed this. However, she also said “I don't keep count, a maximum of 20; It’s not important to me. It's not my life".
The mother said she used cannabis during her pregnancy with the child. She stated that she used 15 cones per day early in the pregnancy and reduced to 5 cones. Regarding smoking cigarettes, she agreed that she was using 15 to 20 cigarettes per week. The mother then said that she smoked 10 cigarettes per day by the time the child was born.
When asked about paragraph 81 of the single expert’s report, the mother stated that her mental health had markedly improved: “I've come a long way in the last three years." Then referring to her poor mental health “it was all down to [the father]'s treatment and his behaviour”.
Asked about the entry for 5 August 2019 in the perinatal mental health records of the S Hospital, the mother stated that the note “recently ceased cannabis”, was a reference to her having ceased cannabis “a couple of months prior”. Counsel put to her that meant May 2019, two months into the pregnancy with the younger child. The mother replied that recently ceased meant “months ago”.
When she was pressed about being dependent on cannabis, she denied this and said that she only attended P Counsellors to “prove a point”. When asked what point, she stated she took the advice of the single expert to attend the service not because she needed assistance with drug use, but to prove a point that she was the subject of family violence. This evidence was bizarre.
When asked about her explanation for using cannabis before she met the father, she said that she had only “experimented” with cannabis as a teenager.
The mother agreed that she had infidelities with three people during her relationship with the father, adding that she had been honest with the father and had “tried to fix it”. However, she then sought to attribute blame to the father, saying she had not intended to intentionally hurt the father, but she had been “sleeping on the couch for years”. The implication being that this occurred because the father was not intimate with her.
She agreed that the biological father was a “deadbeat”, and notwithstanding that she had unprotected sex with him. She stated that she did not know the biological father well enough at the time and that it had taken her a while to realise. She maintained that the father of the younger child was a good father.
The mother denied that she had a falling out with her mother in the lead up to 2018 due to a decline in her mental health.
Regarding her mental health, the mother agreed she had self-harmed by cutting once or twice.
The mother denied that she misled the father about him being the father of the child. She stated that she had told him straight away that the baby was not his.
As to the extent of the father’s care of the child during the relationship, she denied his evidence and said that she did all the childcare right from the start. The mother also denied that the maternal grandmother was called upon to assist her care for the child when the father returned to work.
The mother’s evidence under cross-examination about events surrounding the Hobart Cup in 2018 was as follows:
·The mother had had a big day and night drinking a lot of alcohol and later she also consumed drugs, the precise nature and amount of which she did not know;
·This culminated in her sharing a cab with a person by the name of Mr T, whom she claims she did not know previously and had met that night. The explanation for the cab-sharing was that this would save the cost of additional cab fares as both were going in the same direction to return to their respective homes;
·Mr T ultimately did not continue to his home, but insisted on entering the mother’s home, and then refused to leave the property when asked;
·Mr T and the mother talked and consumed cannabis while at the mother’s home when the child was present;
·Eventually Mr T had to be forcibly removed by police the following day, after the maternal grandmother had failed to persuade him to leave; and
·At the time police attended the property, the mother was said by them to be under the influence and tested positive for amphetamines.
The evidence of Ms N, who was out with the mother and returned to her home in a different cab, broadly corroborated the mother's account of what occurred in the period of time between when they went out clubbing and when the police were called to remove Mr T.
Ms N was cross-examined about the frequency of going out, drinking alcohol and using drugs with the mother. Her evidence was that this occurred on birthdays and special occasions. I observe that this is clearly more than “a couple of times in my life” as stated by the mother.[7]
[7] At [31] of these reasons.
Ms M’s evidence provided little assistance to the court in determining what parenting orders should be made. I accept her evidence that she has observed some positive aspects of the mother’s capacity to care for children and her desire to parent. But, it is apparent from cross examination that Ms M’s opinion or assessment is strongly influenced by her loyalty and friendship with the mother. She seemed to dismiss the seriousness of the mother’s mental health vulnerability and the risk of harm to the child which it presents. Overall, her evidence was influenced by what the mother had subjectively shared with her, rather than personal knowledge and all relevant information.
The maternal grandmother also gave evidence about her involvement in being asked to assist in removing Mr T.
A feature of the mother’s case about the father wrongly retaining the child in his care was that he suffered significant mental health difficulties, putting the child at risk of harm. Under cross-examination, the mother maintained allegations that she had made about the father as reported to the single expert and recorded at paragraph 73 of the single expert report. She said that the father had been psychotic, adding “it was the whole time."
Counsel for the father directly put to the mother that there were numerous inconsistencies in her histories and the stories that she had given. She did not agree, adding what people put down is not her fault or her issue and that she had been clear. It was put to her that her recollection of events were not accurate, and she responded “only a couple of times”.
The mother was asked about paragraph 98 of the single expert’s report, which states:
… The fact that the father is not biologically the child’s father does not appear to be an issue, he has been a primary attachment figure and a strong bond exists. No concerns have been raised about the mother’s capacity with respect to the care of her younger child from a subsequent relationship and a background in childcare means that she does have relevant skills and experience when it comes to the care of the child, The main issue moving forward will be the extent to which she is emotionally available and whether or not the negative attitudes she holds towards the father will affect her relationship with the child.
The mother said “I can see others’ opinions, but I do not agree. It's quite obvious. I hold a negative view towards [the father]. It's not okay what he has done.”
The mother denied that she:
·had ever known that she had been diagnosed with a borderline personality disorder;
·had been untruthful about drug use and the extent of it;
·could not take responsibility for her actions;
·would put the child at risk of physical or emotional harm, stating that she considered that she had coped well all things considered; and
·had a cannabis use disorder with dependence. The mother replied that she did not have a problem with substances and added “I'm not a psychiatrist, but I'm very experienced in it”.
The mother gave evidence that she was not taking any medications for psychiatric health at present. When asked about the accusations she had made against the father regarding threats to kill himself and the child, she claimed that they were “not accusations but fact”, adding she would not make those remarks in the presence of the child.
The mother was also cross-examined about the Family Report dated 3 March 2020. She agreed that she had not had any contact with the child between February 2018 and the September 2018. She said this was due to difficulties at the Hobart Children’s Contact Centre, and she wasn't going to use the Centre “unless the visits were video and voice recorded".
When asked about changing the child's birth certificate, the mother responded “it's my right, she was always supposed to be my name, I corrected what shouldn't have happened.”
The mother gave evidence about the circumstances in which supervised time with the child at Save the Children had ceased. The effect of that evidence was that the service had declined to provide the ongoing supervision because they had falsely accused her of saying things about the father that were not true. She stated that she was the victim and referred to the report annexed to her affidavit and referred to at paragraph 62.[8] She claimed that there had been a misunderstanding and that the staff at Save the Children were putting words into her mouth. Despite this, she made the remark that the father had “put me in the position and he knew it was fraud".
[8] Affidavit of the mother filed 22 March 2021 at Annexure E.
When suggested that it was inappropriate to make the remarks noted in the report, particularly in front of the child, the mother stated “why ask me, if it's inappropriate for me to answer if the child is present". The mother remarked that the wording of the report by Save the Children had been misrepresented “to save their own bottom". Counsel suggested again that the mother was unable to take responsibility for her our own behaviours and statements. She denied this and added that was not so, and that she “would not be taking responsibility for others”.
The mother was asked about showing a photo of the biological father to the child in February 2021, telling her that the father was not her father. The mother denied this but agreed she had done so previously.
There was evidence under cross-examination about various attempts to enrol the child at a school. Without setting out that evidence in full, the respective evidence of the parties and that of the maternal grandmother shows that the communications about this decision making and the parties’ capacity to agree was not particularly effective. There seem to have been multiple misunderstandings or failure to act in co-operation. It took months and various attempts at three different schools, before the child was eventually enrolled at U School.
The mother was asked about paragraph 33 of her trial affidavit.[9] In particular, she was questioned as to whether she saw that it as destructive for others to have it portrayed to them that the primary carer of the child was a kidnapper, the mother stated “no, because it is true”.
[9] Affidavit of the mother filed 14 September 2021.
It was directly put to the mother that she had made false claims about father. She denied this, stating “I swore an oath and I'm a Christian." It was put to the mother that the problem in the relationship was not that the father had been abusive to her, but rather that he had problems with and there were disputes about her use of drugs and infidelity. The mother replied “yes”, inconsistently with the answer given previously and referred to [26].
Counsel for the ICL cross-examined the mother briefly but very helpfully, given the issues in dispute in the parenting proceedings. She questioned the mother about the statements in the Save the Children report. The mother agreed that she told the service that the father: would harm himself and the child if the child left his care, has been diagnosed with bipolar and takes medication for it, has a criminal record, is using the child to control the mother, and pressured the mother in to listing him as the father on the child’s birth certificate. She said that she reported these concerns to a number of services around the same time, and her concern was what the father would do to the child to “get to” her. She said that she told her close friends about the father’s threats and reported it to Child Safety Services in July 2018.
When questioned by counsel for the ICL about the incident at separation in February 2018, the mother denied that the father was acting protectively by removing the child from the house. Her claim was that the child was not supposed to be at the house on that day, and that he had put the child in the situation in order to justify her removal.
The mother stated that she has not taken any steps to restore communication with the father as she is the victim of a crime, and she clarified that the crime was the father’s perpetration of mental abuse and the father withholding the child from her. Counsel for the ICL asked whether she could see herself co-parenting with the father, and she said that she could not.
The mother said that she would tell the child about her paternity when she was older. When the ICL asked if the father would be involved in that conversation, the mother’s response was “No, I hope not.” She conceded that she has a negative view of the father which is unlikely to change.
The mother’s evidence was that she has never been diagnosed with BPD, although both Ms H and Dr V considered it. Counsel for the ICL put to the mother that an antenatal report completed by Dr W on 13 July 2016 stated that the mother “displayed some cluster B and C personality traits”. In reply the mother stated “that’s anxiety, people read me wrong, what I come across as isn’t what I’m like, it’s anxiety.” She accepted that she has cluster B traits, which counsel for the ICL put to her are those associated with anxiety, but not that she has cluster C traits, which counsel for the ICL put to her are those associated with BPD.
She said that she would undertake dialectical behaviour therapy (DBT) with Dr V if she offers it, but was equivocal as to whether she would undertake it elsewhere.
The ICL briefly cross-examined the mother about her previous evidence regarding when she cut down her use of cigarettes. She conceded that she had a discussion with a health professional about using nicotine patches when she was approximately 20 weeks pregnant, but stated that it was a general conversation rather than advice to cease smoking.
The Father
The father relied on his affidavits filed 2 March and 30 August 2021 and they were taken as read. In addition, he called his sister, Ms Y and Ms Z who had been a workplace colleague and friend of the mother. Their affidavits were also read, being:
·Affidavit of Ms Z filed 10 August 2021; and
·Affidavit of Ms Y filed 30 August 2021.
Under cross-examination, the father gave evidence that he was no longer employed by Employer AA as he had resigned following restructuring and being required to perform different work. He said that he was interested in construction design work and would be pursuing study and qualifications in that area.
His evidence was that if he completed his TAFE course full-time he would be looking for work after three years but longer if he completed it part-time. He did not think he could care for the child, study and also work.
The father explained the circumstances in which he jumped from a bridge spontaneously during a period of poor mental health. The period of poor mental health coincided with charges relating to computer fraud, to which he pleaded guilty. He was 19 years of age at the time, sought psychological treatment and slowly after a period recovered.
Regarding the mother’s difficulties with literacy, it was put to the father that he would “take over”, implying that he was controlling. The father stated that he would try to explain things over and over and it became frustrating, so ultimately he did take over. He agreed that it was possible that the way he communicated with the mother added to her stress.
When asked about the period between February and September 2018 when the mother had not seen the child, the father stated that having tried to implement supervised time at the Hobart Children’s Contact Centre, and that he felt that the mother had abandoned the child. He was asked why he did not engineer a way to facilitate time between the child and the mother. The father replied that the mother had willingly withdrawn from an arrangement and he did not know what the process ought to be so sought advice from lawyers.
The father conceded that in September he was aware of the reasons the mother did not want to use the Hobart Children’s Contact Centre and was making alternative proposals, so it ought to have been clear that she was not abandoning the child. The father stated that originally the key issue was paternity and that it was not until the following year that the mother sought to pursue time with the child. He stated that he thought that there was a possibility he was the father and that he did not know for certain until the DNA test was done.
He was asked why he did not offer to make the child available to spend time with the mother once she commenced proceedings. He replied that his solicitor did not suggest this. It was put to the father that it was incumbent on him to facilitate time between the child and the mother and he replied that he did not think it was his responsibility solely and that it required the mother to cooperate also.
He was asked why he had not organised time with the maternal grandmother after she had filed an undertaking to supervise the mother’s time with the child. The father stated that he had offered it around Christmas time in 2018 but then because what had happened that day, it did not continue. He clarified that he had received information from the mother’s father and brother that the mother was under the influence of alcohol at the time.
The father agreed that after the appointment of the ICL and Family Report interviews in 2019, he had not agreed to unsupervised time. However, he said that it was because the mother had not demonstrated she was not using cannabis or other drugs. It was suggested to the father that it had not been made clear that he required evidence that the mother was no longer using drugs. He disagreed with this, stating that it had not been explained to him that paying for the cost of drug testing was a problem for the mother, but when it was, he offered to pay.
The father said that he was aware from ICL conferences that the mother was addressing her mental health, seeing Ms V and regularly attending P Counsellors. He stated that he could not recall the specifics and that the ICL conferences were conducted as shuttle conferences. It was his understanding that the counselling the mother was having did not establish that she was not using drugs.
When asked about another ICL conference in December 2019, the father agreed that he had at that point agreed to the mother’s time with the child being supervised by the maternal grandmother.
It was put to the father that the mother was a “good mother”, but he disagreed.
When asked why the father had not agreed to additional time progressing between the child and the mother, he stated that receiving information took a long time and that it had taken three years to get the drug test done. When the father was shown the drug test result document, he noted that it was dated 18 September 2020 and then conceded that he was mistaken, it had not been three years.
Counsel put to the father that his focus on receiving a negative drug test was overly severe. He did not agree, stating that he believed it was in the child’s interest to be sure that the mother was not using drugs.
The father acknowledged that it was not until November 2020 that he had agreed to the mother having overnight time with the child, but he denied that he had drawn it out. He was asked why he had not engineered a way for the mother to have more time with the child. He replied that it was because he was not confident that she would be able to care for the child appropriately.
Under cross-examination the father denied that he had deliberately limited the mother’s time with the child for years and that he continued to do so at the time of the hearing. He maintained that although there was evidence from the drug test that the mother had not been using cannabis, there had been nothing provided since the single expert’s report addressing the mother’s mental health and the concerns raised as to her capacity to care for the child, for example what her capacity to cope with stress was. The father agreed that he had relied on his solicitor to guide him about agreeing to the mother’s time with the child.
The father denied that he would threaten harm to the child or himself when the parties argued or that he was monitoring the mother’s phone activity. It was suggested that when he was emotional he would say things that he regretted, but he disagreed adding that the things he had said to the mother may have hurt.
The father was cross-examined about communication and interactions to enrol the child in primary school. It is sufficient to say that the evidence illustrated that the parties were not able to work easily and cooperatively. The maternal grandmother was also involved and there may well have been incomplete communication and misunderstanding.
The father agreed that there was poor communication and it would be helpful for the parties to use a communication app. He also conceded that it was possible that had he been more focused on the child the “rigmarole” about school enrolment would not have happened.
The father was also asked about requests for additional time between the mother and the child on Mother’s Day and Easter. He said that he had agreed to time on Mother’s Day, but that the lawyers had failure to communicate that. He agreed that in hindsight he ought to have communicated with the maternal grandmother. Similarly he agreed to this regarding Easter.
The father was further cross-examined about opposition to progressing the mother’s time by reference to the period after December 2020. The father’s evidence in effect was that the ICL at the time, Mr Fitzgerald, was liaising and communicating with both parties and he understood that there needed to be information provided from the mother’s treating psychologist. The net effect of the father’s evidence was that he continued to have genuine doubts about whether it was safe for the child to be in the care of the mother unsupervised.
I asked the father to explain what he had been requiring in order to agree that the mother’s time should increase and not be supervised. He stated that “evidence that the mother was drug free, that she had a mental health care plan and that he could be certain that the child was in an emotionally safe place and would not be neglected or witness anything that the mother may suffer.”
The father was cross-examined by the counsel for the ICL. He said that he was informed by the mother’s sister-in-law that she had seen a draft application to change the child’s name and to remove him from the child’s birth certificate. His concern is that the child will now not feel included in his family and that he will have difficulty being legally recognised as her father. When asked by me if his concerns would be addressed by the child having a hyphenated surname, he said he would “accept” this but his preference is to “put it back how it was”.
Regarding his affidavit evidence that the mother smoked cannabis while pregnant with the child, counsel for the ICL asked the father what, if anything, he did about this. He replied that he had conversations with the mother, but that the mother held a fixed belief that if she ceased her use of cannabis it would harm the child. He was not aware if the mother had based her opinion on medical advice. He conceded that, despite his objections to her drug consumption, he provided her money with which she may have purchased drugs.
The father was questioned by counsel for the ICL about the events on the morning following the Hobart Cup in 2018. His evidence was essentially that when he awoke at 9:30am and left the house with the child he was unaware that Mr T was present. It was only when he returned later in the day that he discovered what had transpired.
The father agreed with the recommendations of the single expert that the child ought to live with him and spend some increased time with the mother. He accepted that he originally proposed equal shared care, but had changed his opinion after he learned the extent of the mother’s mental health issues. Counsel for the ICL queried how spending only three nights in the mother’s care rather than seven nights would protect the child from those issues, and he stated that more time in the mother’s care increased the risk of exposure to the mother’s detrimental behaviour. Also, it would put stress on the mother over a longer period of time and increase the chance of the having a “breakdown”.
Ms Y
The evidence of Ms Y was subject to objection by counsel for the mother. After hearing submissions I ruled that most of Ms Y’s affidavit filed 30 August 2021 should be received in evidence, but disallowed paragraph 10.
Ms Y is the father’s sister. In summary, Ms Y’s evidence indicated that she assisted the father caring for the child at times and had a close relationship with her. Her evidence corroborated the father’s concerns about the mother’s capacity to care for the child and not harm his relationship with her.
Ms Z
Ms Z is the father’s sister, and her evidence was intended to be corroborative of the father’s evidence that the mother misused cannabis, alcohol and other drugs, both before and after the child’s birth. I gained the impression from hearing her evidence that Ms Z overstated the extent of her knowledge about these topics. Nevertheless, I accept that, at times, Ms Z was aware that the mother used cannabis. I also accept that she discussed with the mother her concerns for the child because the mother continued to use cannabis during her pregnancy.
The Family Reporter
The reports of the Family Reporter dated 7 May 2019 and 4 March 2020 were received in evidence and she was made available for cross-examination. Her evidence given in cross-examination by counsel for the mother was very brief. She largely maintained that the child should remain in the primary care of the father. She did agree that she would have expected time with the mother to have progressed after late 2020 to two nights per fortnight, with conditions. She agreed with the mother’s counsel that having a negative hair follicle test in December 2020, continued engagement with P Counsellors, and a mental health care plan such that she sees a psychologist, supported the mother’s claim for additional time. The Family Reporter stated those matters would be “reassuring” but she still would not be “confident” in the mother having substantial time.
The Family Reporter stated that because there had not been a recent assessment she could not make recommendations about the mother’s time with the child, adding that there would need to be more confidence in practical co-parenting. She also agreed with the proposition that if there was evidence that the father had been unduly obstructive, which would be consistent with the mother’s allegation that he had been controlling.
Counsel for the mother enquired whether the Family Reporter would have any concerns with an arrangement where the mother had five nights per fortnight with the child, then progressing to six nights and in term four of 2022 moving to equal time. She stated that if the objective was to move towards equal time and the mother did not have limitations, including that the mother’s dynamics were able to support the father in his role that may be satisfactory. However, in her view the Court would need to be positively satisfied that the parties can effectively co-parent.
When asked about informing the child about her parentage, the Family Reporter stated that the most important thing was to plan how the child was told and that the parents need to have a shared narrative. She also considered that the child should be older when told, more like high school age. She also indicated that it was a balance between leaving it a bit longer so that she is able to comprehend and leaving it too long, raising the possibility that she will be told by others.
When cross-examined by counsel for the father, the Family Reporter agreed that it would be a real concern if the child was shown photographs of her biological father, particularly if he is not to have a role in her life. She suggested the messaging, if it continued, would raise real concerns.
The Family Reporter also agreed that, based on information she had considered, there were concerns for the child in the mother’s care, the father had acted protectively and that had been a reasonable foundation for his attitude to the mother’s time with the child.
When asked by counsel for the ICL for recommendations if it was found that the mother maintained fixed and negative attitudes towards the father, the Family Reporter stated that she recommended more limited time with the mother. She explained that less time exposed to the mother’s views would minimise the harm to the child.
The Family Reporter was also asked whether there could be any alleviating measures, if consistent with the single expert’s views, the parties did not have effective co-parenting. The Family Reporter suggested use of community mediation, therapeutic supports, a communication app; being thoughtful of upcoming decisions and being proactive; utilising parallel parenting arrangements. The latter meaning that each parent be responsible for day-to-day matters while the child is in their care without interference from the other parent.
The Single Expert
The Single Expert’s report was received in evidence and he was available for cross-examination. Following cross-examination by all counsel, his evidence remained largely consistent with the contents of his report. He did agree however that:
·In making a diagnosis of BPD, the person does not necessarily have all the typical traits;
·In a cross-sectional assessment it is better to comment on traits that have either been seen over time or there is collateral information about those traits over time;
·Clinical management does not alter depending on whether there are traits or a formal diagnosis of BPD;
·It is not surprising if a person diagnosed with BPD is not told that they have the diagnosis;
·Dialectical behaviour therapy is a particular type of cognitive behavioural therapy, usually delivered in a group. It is not provided by all psychologists, but he believes it is available at the CC Clinic and Region DD Mental Health team;
·If the cost of dialectical behaviour treatment is a barrier, the best compromise is a psychologist who uses components of the therapy;
·When stressed, persons are less open to treatment and able to accept negative aspects of self;
·A person with BPD traits does not necessarily experience those forever;
·It is not surprising that a person does not accept the diagnosis of BPD and it takes some time. It is usual to have several presentations for treatment due to crisis before the condition is accepted;
·If the mother has ceased using marijuana entirely you would expect more stability in mood, less impulsivity and poor judgment which is associated with intoxication;
·Any form of therapy can be helpful, and the treating psychologist is in the best position to determine the required duration of treatment, but this depends on the practitioner’s experience and the development of insight by the mother; and
·It is possible that the reference to using $100 per day cannabis was recorded mistakenly for per week and the mistake carried on.
In relation to the superannuation pool, the father was already working and accruing superannuation when the parties formed their relationship. I infer on the evidence that it also continued to accrue after separation until he ceased employment.
The mother did not contribute either directly or indirectly to the father’s superannuation pre- and post-separation and in my view the adjustment of the parties’ superannuation should reflect this. In this context, the discrepancy about the length of de facto relationship has some bearing, but the evidence does not permit this to be resolved satisfactorily, although I generally prefer the evidence of the father who made reasonable concessions and did not exaggerate or conflate.
I propose to make an order that there be an adjustment of the superannuation interests of the parties to achieve a split of 60:40 in the father’s favour for the foregoing reasons. This will require a splitting order in favour of the mother. Rounding the superannuation values as identified by the parties during the proceedings, a 40% splitting order translates to the sum of $35,000 rounded arrived at as follows:
ASSET VALUE Superannuation (mother) $ 931
(rounded down to $900)Superannuation (father) $93,000 Total rounded $93,931 40% to mother $37,572.40 less $900 Split payment $36,672.40
Before making final orders in the proceedings, the parties will be invited to make oral submissions about the Court’s proposed orders to give effect to this judgment.
I certify that the preceding two hundred and fifty-nine (259) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Taglieri. Associate: T Sherwood
Dated: 10 December 2021
Ladbrook & Dodd [2021] FedCFamC2F 532
ADDENDUM
Judge Taglieri
On 10 December 2021 I handed down my reasons for judgment in this matter, but noting that there was ambiguity about the parties’ submissions about property matters and if there ought to be a one or two pool approach, I gave leave for the parties to make submission about that issue and also my proposed draft orders providing for a superannuation split in favour of the mother.
I also indicated that I was of the preliminary view that the appointment of the ICL should continue for a period into the future due to determination of the issues in this case and consequent orders. Particularly, those relating to the gradual increase of the child’s time with the mother subject to conditions, the child’s name change and arrangements for commencement of school.
The ICL only made submissions about a proposed order for her continued appointment. I accept all the submissions made in writing and dated 13 December 2021. Balancing the competing considerations identified in the submissions which assist in informing the desirable length of continued appointment in the future, I will make an order for continued appointment for 12 months. This timeframe ought to be sufficient time to permit the ICL to:
(a)Inform the child of the orders made and ensure that it is done appropriately.
(b)Oversee the processes involved in the child settling into school and facilitation of the change of the child’s surname pursuant to order 27; and
(c)Permit information to be gained about the mother’s progress with psychological treatment, the effectiveness of which is critical to the successful enlargement of the mother’s time with the child.
Although leave was not given initially to the parties to make submissions about proposed order 9, I accept that the mother ought to be permitted to do so. The other parties should also be afforded opportunity to reply and have done so. I have had regard to the written submissions on behalf of the mother dated 14 December 2021 and 17 December 2021.
The written submissions made by the mother regarding order 9 make it plain that the mother and her legal advisers have interpreted order 9 to amount to an order requiring the maternal grandmother to supervise the mother’s time with the child. It does not. The terms of the order itself by their plain words do not require the maternal grandmother to be present or supervising the mother’s time.
The order is a parenting order which provides for a stable overnight accommodation and sleeping arrangement for the child. The order relates to the reasoning at [218] of the reasons for judgment. I am satisfied that the living conditions at the maternal grandmother’s residence are adequate for the child’s reasonable needs, particularly for sleeping at night. I have specified the requirement in draft order 9 as I envisaged the possibility that:
(a)The child may want to attend sleep-overs with friends or relatives; and
(b)In due course, the mother may establish a home independently or with Mr B or another person.
In the case of the former, I would not expect the father to oppose the child sleeping at a friend’s or relative’s home. In the case of the mother establishing her own home either alone or with others, in my view it is quite likely there will be additional/different stresses and in turn risks of harm of the kind identified by Dr C, based on the totality of the evidence.
I did not envisage that the father would unreasonably withhold consent if the mother had a suitable home, sleeping arrangements and did not have persons likely to expose the child to risk of physical or emotional harm, either directly or indirectly by witnessing conflict or family violence. In hindsight, the purpose of order 9 can still be achieved by limiting the period for which the order operates to a length of time when there can be more confidence about the mother’s coping strategies after she has had a regular and consistent course of treatment by a psychologist.
Accordingly, I will express draft order 9 such that the condition only operates until the end of February 2023.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Taglieri. Associate:
Dated: 20 December 2021
0
8
0