LEPSON & EVERILL (No.2)
[2018] FCCA 3814
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEPSON & EVERILL (No.2) | [2018] FCCA 3814 |
| Catchwords: FAMILY LAW – Final parenting hearing – unacceptable risk to child due to mother’s mental health – whether or not interim or final orders should be made. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3). |
| Cases cited: Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MR LEPSON |
| Respondent: | MS EVERILL |
| File Number: | MLC 12048 of 2017 |
| Judgment of: | Judge Harland |
| Hearing dates: | 22 & 23 October 2018 |
| Date of Last Submission: | 23 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Australian Family Lawyers |
| Counsel for the Respondent: | Ms Mallett |
| Solicitors for the Respondent: | J A Middlemis |
| Counsel for the Independent Children's Lawyer: | Mr Tesoriero |
| Solicitors for the Independent Children's Lawyer: | Heinz & Partners |
ORDERS
All previous orders be discharged.
The child [X] born …2011 (“the child”) live with the father.
The father have sole parental responsibility of the child.
With respect to major long term issues the father will contact the mother in writing and provide his views in relation to any such issue. The mother and father will make a genuine effort to come to a joint decision about any issue.
If no agreement is reached between the parties with respect to major long term issues then within 14 days the father will make the final decision and advise the mother in writing of the decision.
The child spend time with the mother as follows:
(a)For three Sundays in four from 11.00am to 5.00pm alternating between Town A and Melbourne unless otherwise agreed;
(b)For three Wednesdays each month from the conclusion of school or 3:30pm until 7:30pm and during school holidays the mother’s time will be extended to 11.00am until 7.00pm;
(c)For one Wednesday each month from 4:30pm until 8:00pm to be supervised by the paternal grandmother;
(d)By phone on each Tuesday and Thursday between 6:30pm and 7:00pm and at any time the child wishes to do so with such phone call to be monitored by the father; and
(e)At other times as agreed in writing between the parties.
That the parties shall conduct the changeovers in Melbourne at the father’s house, unless otherwise agreed.
All time the mother spends with the child be supervised by MR D or other supervisor as agreed between the parties save that the paternal grandmother will supervise an after school occasion once per month as agreed in writing between the mother and the paternal grandmother with the mother to confirm her attendance 24 hours prior.
The mother provide the psychiatric assessment of Dr E dated 17 August 2018 and the family report of Ms F dated 28 September 2018 and these reasons to whoever she engages to provide her with treatment.
The mother provide an irrevocable authority to her treating psychiatrist that authorises him or her to notify the father if the mother fails to engage or follow the treatment regime.
The parties do all things to engage with a family therapy practitioner and follow their reasonable directions in relation to attendance at appointments.
The parties be authorised to provide a copy of these orders to the School 1 Primary school.
The parties be restrained from:
(a)Discussing these proceedings or the material filed in these proceedings; and
(b)Denigrating the other party or their family members,
in the presence, sight or hearing of the child.
Prior to the mother filing an application pursuant to order 14 herein, the parties shall attend mediation.
That the mother be permitted to file an application seeking unsupervised time with the child upon filing an affidavit by a psychiatrist addressing the mother’s mental health and risk issues as referred to in:
(a)Dr E’s report;
(b)The family report by Ms F; and
(c)These reasons.
Any application brought by the mother shall be listed before Her Honour Judge Harland if possible.
IT IS NOTED that publication of this judgment under the pseudonym Lepson & Everill (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12048 of 2017
| MR LEPSON |
Applicant
And
| MS EVERILL |
Respondent
REASONS FOR JUDGMENT
Both parents have vulnerabilities and have mental health issues. The difference between the parents is that the father seeks help when he feels his mental health is deteriorating, whereas the mother has trouble recognising when she is unwell and has a patchy track record with engaging with professionals.
The parents have one child [X], born on …2011 (“[X]”). He is seven years old.
The parties were in a brief relationship. They met in 2011 and found out that the mother was pregnant in …. [X] was born on …2011. The parties separated in April 2012 when [X] was seven months old.
In the following reasons, I find that it is in [X]’s best interests to remain living in the father’s primary care and for the mother’s time to remain supervised. If the mother is able to successfully address her mental health issues and the consequent risk issues, she will be able to bring an application to the court seeking unsupervised time.
History of the proceedings
The father commenced proceedings on 20 November 2017.
The mother did not attend the first return date on 13 December 2017 despite having been personally served.
The mother did not attend the second return date on 5 February 2018 and a warrant was issued for her arrest.
The mother attended court on 20 February 2018 after being brought to Court under arrest by the Australian Federal Police. Interim orders were made providing for the father spend time with [X].
On 28 March 2018 the parties attended an s.11F conference. The family consultant gave oral evidence in court that afternoon. After hearing argument, Her Honour Judge Bender made orders removing [X] from the mother’s care and placing him with the father after an interim hearing where she heard concerning oral evidence from a family consultant. Judge Bender made the following observations at [27] to [29] of her reasons:
In this matter the overriding consideration is whether [X] is at risk of physical or emotional harm if he were to remain in the Mother’s primary care at this time. The evidence of Ms G as to the Mother’s presentation, her inability to ensure [X] consistently attends school, her failure to comply with the Court’s orders for [X] to spend regular time with the Father and the genuine concerns of Ms G as to the Mother’s functioning are all very, very concerning.
The Mother has been [X]’s primary carer since birth and to remove him from her care and from the community in which he is familiar is not a step to be taken lightly. However, given the matters of concern set out in the previous paragraph, I am of the view that on the evidence available to the Court, the level of risk to [X] if he remains in the Mother’s care persuades me [X]’s best interests are met by interim orders being made he live with the Father.
I am supported in this conclusion by the clear recommendations of
Ms G and her observations of the strong relationship between [X] and the Father.
Her Honour Judge Bender made several orders, including expediting the final hearing. Significantly, the mother was ordered to see a psychiatrist within seven days.
At the commencement of the trial, the mother’s Counsel urged the Court to make interim orders to give the mother the opportunity to address the concerns about her mental health. The difficulty with that course is that the mother has already had that opportunity. She is only now doing something about it. This needs to be seen in the context of the mother being present in Court on 28 March 2018 to hear the oral evidence of the family consultant, Ms G, and the reasons Her Honour Judge Bender gave at that time for changing residence.
The father’s case
The father’s case is that [X] should remain living in his primary care. He is able to provide him with a stable household and he has shown he will facilitate the mother’s relationship with [X].
The father says that from the time [X] was seven months old until he was about two years and nine months old, in mid-2014, he saw [X] regularly for six nights a fortnight.
The father says that the contact arrangements gradually deteriorated in 2014, with the mother often being late or not dropping [X] off at all. She also began to make last-minute changes to the times and places for handovers.
The father started an apprenticeship in mid-2014. As his wages decreased, he was not able to provide the same level of financial support for [X] that he had been providing to the mother. He says the mother unilaterally relocated to Town B which is three and half hours away from the father’s home. From then it became harder and harder for him to contact the mother and [X]. Initially after the mother moved, the father saw [X] every second weekend from Friday afternoons until Sunday mornings. He drove from Melbourne to Town A to collect [X] at the beginning of his time and from Melbourne to Town C at the end of his time.
The father says in January 2015 the mother became less regular about arranging changeovers and began withholding [X]. He made arrangements for other times and locations but he would not know if the mother would turn up with [X] and the mother would not answer his telephone calls. He also says that the mother and [X] would spend time at her brother’s home in Melbourne without telling him and she refused to allow [X] to spend time with the father on weekends at his home.
The father says he initiated mediation with Relationships Australia in June 2015 in an attempt to establish a regular arrangement.
Prior to commencing proceedings in November 2017, the last time the father saw [X] was on Christmas Day 2016, apart from a 20 minute visit at a Shopping Centre in March 2017. The mother stopped the father from seeing [X] altogether for a year.
The father says he made weekly attempts to contact the mother throughout 2017 and also tried contacting her through her father without success.
The father lives with his mother in her home in Suburb D and has for four years. His mother works as a public servant. She assists the father with [X]’s care and takes him to school.
The father seeks orders that [X] remain living in his care and the mother’s time remains supervised but that the driving to and from changeover be shared. He told the family report writer that if the mother’s mental health was stable he would consider increasing the mother’s time to alternate weekends and school holidays.
The mother’s case
The mother acknowledges that she has mental health difficulties, but says she is appropriately medicated and always has been. She says that [X] was thriving in her care and she is concerned about the father’s long-term mental health and parenting capacity and his use of cannabis.
The mother raises concerns about the father’s lack of candour about his disability and capacity. I note that both parents showed some avoidance in this regard. She submitted that it was premature to make final orders and that she should be given an opportunity to obtain the recommended treatment.
The mother alleges that during their brief relationship, the father denigrated her and was physically abusive, threatening to kill her when [X] was about three months old. She also says that when [X] was about five months old they were arguing and he pushed her into the bedroom wall.
The mother says that it is not these incidents that make her afraid of the father, but rather that he has threatened to kill her and she is concerned that he is capable of carrying out that threat.
The mother says that she has been the primary carer for [X] for all of his life until the orders made on 28 March 2018 and that [X]’s personality and progress are largely due to her care of him.
She refers to [X]’s wishes to return to live with her and says that should happen at the end of the school year as she acknowledges that [X] is doing well at his current school and that this would be less disruptive.
She says that in the event that [X] remains with the father that supervision is unnecessary. If the Court finds supervision is necessary, she could spend time with [X] at her brother’s home in Melbourne. Her brother has not provided an affidavit and was not present in court.
Independent children’s lawyer’s case
The Independent Children’s Lawyer (“ICL”) proposes that current interim orders be made on a final basis with the Saturday time alternating between Town A and Melbourne and the mother also having some time after school on Wednesdays.
She submitted that the father was a credible witness and although he showed somewhat limited insight, overall the father showed a strong commitment to [X].
She also submitted that the mother’s evidence is difficult to rely on and the mother showed a very poor understanding of her own mental health issues and diagnosis.
Assessment of witnesses
The father gave his evidence in a straightforward manner. He showed some inflexibility and limited insight with respect to some issues but was a credible witness.
The mother was highly defensive at times when cross-examined. The mother was cross-examined about the section 11F report and the mother became evasive, making excuses and had difficulty focusing on questions. The mother also presented as a poor historian.
The mother was not a credible witness. Her evidence was inconsistent and at times confusing. I do not think she was deliberately trying to mislead the court. Rather, I think it is a reflection of her lack of insight and poor mental health.
Mother’s failure to facilitate [X] and the father’s relationship
Shortly after the parties separated, they had a shared care arrangement where [X] stayed overnight with the father on two or three occasions each week.
The father gives detailed examples of the attempts he made to see [X] and contact the mother and the mother’s inconsistencies and avoidance. I have already referred to these examples and will not set them out again. This continued even after interim consent orders were made.
The mother agreed that initially after separation, the father had care of [X] for six nights a fortnight. She agreed that the father wanted to be actively involved with [X]’s care.
The mother says that she actively encouraged the father to have an ongoing relationship with [X] post separation. She said she did talk to the father about her move to Town B and says at [6] of her trial affidavit that she travelled on a fortnightly basis for about four years from Town B to the father’s home so that the father could have alternate weekends with [X]. She denies that the father would drive to Town A on Fridays and Town C on Sundays. The mother’s evidence was inconsistent and unconvincing. On her own evidence it is simply not possible that she facilitated contact for four years. She repeated this in cross-examination but it is clear from the chronology of events that the reference to four years is simply incorrect. The mother said that they had good contact for four years and then the father started to be detached. When it was put to her that she stopped contact, she said “yes I did, sorry”.
The mother conceded that she did not arrange for the father to see [X] even after the court proceedings began on 20 February 2018.
The mother agreed that the father did ring her a lot during the year and she did not allow him to see [X]. She said she knew he rang because it would come up as a missed call and she did not ring him back. She said she was confused and she also said that her father had passed on a lot of messages from the father wanting to make arrangements to see [X].
It is apparent that the mother’s response to issues that she finds difficult is to be avoidant. This includes stopping the father’s time and not getting [X] to school.
[X]’s school attendance
[X] started kinder in 2016. The father complains that the mother did not consult with him, unilaterally enrolled [X] at a kinder she chose and refused to tell the father which kinder he was at. The father says he looked up the area she was living in and discovered that there was only one nearby. The father rang the kindergarten to confirm that [X] was enrolled there.
The father says that the mother also unilaterally enrolled [X] at School 2 primary school in 2017. The father attended orientation and enrolment day with [X] in November 2016. The father conceded in cross-examination that there was only one primary school in Town B and that he did not do any research himself but said he raised it with the mother when she moved and got no response. He disagreed with the proposition that the mother was trusted by both of them to do things such as selecting to which school [X] went. He said he asked questions and she always deferred it to another time. He said she was hard to talk to and it was hard to get information from her. The father said he thought it was easier to go along with her because she was the parent who had to arrange it. He said when he was told what primary school [X] was going to, he thought that the school was alright and acknowledged it was close to the mother’s home, but he complained about not being told about important dates and also not be informed about [X]’s school attendance. The father denied that he chose not to go to the enrolment day. The father attended the first day of school.
The father said that the mother messaged him about a special day at school for special people but by the time he received that message from her the date had already passed.
The father says he contacted [X]’s school in mid-2017 and in October 2017. He was concerned as he was not receiving information from the school as he had been promised. After receiving [X]’s school reports he contacted the principal expressing concern about his absences. He was also concerned about his school performance as referred to in his term two report for 2017.
The reports refer to [X] having 37 whole day absences and 28 partial day absences. The teacher commented in the report that [X] appears happy at school and engages in play with students but that his absences have affected his learning as he has missed “explicitly taught skills and concepts and not reached benchmarks.” There is no indication in his report that he had any difficulties in class with other students or his teachers. It is clear that he had different teachers other than his primary teacher Ms H, as he has Ms J for physical education and Ms K for art.
The father says after he received the report he had a long talk with [X]’s teacher about his progress and absences and was told he would receive the weekly email to parents (which he was unaware existed) and would be informed of future absences.
The school wrote to the father with respect to the semester two report and indicated that [X] has an attendance rate of 78% and referred to the impact on his education.
The father also annexes a further letter from Town B Primary School with respect to [X]’s attendances from the beginning of the year 2018 until 20 March 2018 which indicates that [X] had a 70% attendance rate.
In contrast, for the period 8 April 2018 to 21 September 2018 when [X] was living with the father, he had four full day absences and one full-day absence recorded as being “other school”.
The father annexed a letter from the principal of School 1 Primary School dated 25 June 2018 to his trial affidavit. The principal recorded that when [X] first attended the school in April, he did not have the stamina to be at school for five days a week and had some difficulty adjusting to the routines and expectations. He was behind in reading, writing and mathematics and that he has made great progress since April 2018 and has attended school consistently.
His teacher wrote the letter dated 17 September 2019 [sic] where she commented on [X]’s difficulties when he first attended school, which she thought stemmed from his lack of school attendance and home expectations. She says that the previous school confirmed the issues. She observed that [X] attended school on time, has had few absences, has developed friendships and has improved his reading and settled into class more focused and more independent.
The father also conceded that whilst he complains that he received no information from the school between February and July 2017, he did not contact the school. He also disagreed with the proposition that the mother knew that he asked the school to send him information directly and said that when he had contacted [X]’s kinder the year before the mother had abused him and told him not to contact the kinder. The father said he contacted the school in July 2017 and asked why he hadn’t received any information from the school and why he hadn’t been invited to a parent teacher interview. The father said the teacher told him that she gave the mother a copy of the report to give to him.
My impression of the father is that he was somewhat passive about these issues.
In her trial affidavit, the mother acknowledges that [X] did have absences from school when in her care but she blames his teacher Ms H referring to her as elderly and not having a good teaching method. She does not indicate that she attempted to address this problem with the school. She says that if [X] is returned to her care, he will have a different teacher who is younger and who [X] likes, and the school has offered him two additional classes after school a week to assist him.
The mother was also cross-examined about the school attendance. Whilst she agreed that [X] did have too many days off school, she then made excuses for it. She agreed that his attendance rate was 78% and said she did take him out of school because he was a nervous child and there was also a period where the school was sending [X] home a lot because [X] was just nervous. The mother then changed her evidence and said that his absences were not as high as the school had recorded. She further said she had spoken to the school recently and that the figures were wrong. She agreed that she did refer to the discussions with the school about the attendance records in her affidavit. The mother agreed that her affidavit does not address the issue of [X]’s school attendance which is surprising given the concerns the father raised about this.
The mother then said that she tried to contact his teachers and tried to send [X] to school but he would be vomiting and crying. She said that he was basically nervous as he is very frightened of his teacher.
The father’s Counsel suggested to the mother that she was not able to get [X] to attend school at a satisfactory level. She said that in a sense she accepted that. The mother said she arranged a social worker for [X] at school and conceded that she did not refer to that in the affidavit. My impression of the mother’s evidence on this point is that she was making excuses and that she did little to ensure that [X] attended school. She did not arrange for assistance out of school to encourage [X] to go and this is a serious deficit in her parenting. The level of school absences that [X] had has a significant detrimental impact on his educational progress and also would have affected his socialisation.
The mother agreed that [X] is doing well at school now.
Mother’s allegations of abuse
In her trial affidavit filed on 5 October 2018 the mother alleges at [17] that one day she came home and saw the father and [X] on the floor and appeared to be “caressing [X]’s genitals in what I perceived to be an inappropriate manner.” She said there were no nappies in sight. [X] was less than four months old at the time.
At [21] of her trial affidavit the mother says that she was concerned about the condition of [X] when the father returned him from visits with him. She says she observed welts and skin lesions on his genitals. She took him to Royal Children’s Hospital and made a report. She says the father was called and he “apparently made allegations against me which led me to be sectioned and spending the night in the pysch centre”. She says she was discharged the next day after seeing a psychiatrist and he said he did not know why she was there and she should go home.
The hospital did not find any evidence of genital lice and no evidence of anything causing [X] to complain of a sore penis. The mother agreed that DHHS and the doctors did not find anything. She said that she was concerned about [X] touching himself and acting strange. She said she got sectioned and [X] spent time with his father that night and she was released the next day. She picked up [X] two days later.
When cross-examined, the mother emphatically denied going to SOCIT to make a complaint about the father sexually abusing [X] in 2013. She disagreed with the Department Health and Human Services (“the DHHS”) record of 10 January 2013. She said she presented [X] to the Children’s Hospital when [X] had a virus and she was sectioned. This is inconsistent with her trial affidavit as set out above.
The mother agreed that that a DHHS intake record dated 10 January 2013 refers to a report being made to child protection in 2013 where the mother alleged that the father was sexually abusing [X]. When asked if she told the DHHS that, the mother initially said that it was [X] who told them and then conceded that she did.
She was asked about the DHHS case note dated 12 January 2013 which recorded that the mother was having hallucinations seeing worms and lice in [X]’s faecal and urine samples. The mother said she felt scared because of his behaviour. The mother said she called the hospital because [X] kept scratching his genitals area and was acting unusually. She said the doctor told her he had scabies. She did not know what that was.
The father’s Counsel put to the mother that she has alleged that the father sexually abused [X] at other times. She responded saying Mr L contacted SOCIT not her. Mr L is someone the mother knows. She denied that Mr L was ever her partner. She says they were never in a relationship, that he is not a good person and that she is having the statements he lodged revoked as they are lies. She said they were false statements and she did not make them. She does not explain where Mr L would have gotten the idea. It seems particularly odd if they were not in a relationship or at least friends.
At [27] of her trial affidavit, the mother says that [X] wants to see his father but complains that the father always touches his bottom and he doesn’t want him to do so. She says that after the first ordered visit, [X] returned home happy with no distress but after the second visit he was distressed and complaining the father touched him on the bottom.
At [28] of her affidavit, the mother says that after returning from visits with his father in recent times [X] has showed sexualised behaviour, including placing his hand over his genitals and rubbing them and turning his backside towards her and wiggling his bottom in a sexually suggestive matter. The mother says [X] only does this immediately before and after seeing his father. These references by the mother to recent visits between the father and [X] were with regards to the court ordered visits after the father commenced proceedings in 2017 before [X] was removed from her care.
The mother insisted that she did not make the sexual abuse allegations in 2017 and found it strange. She says the statements are false and that she insists that she did not make the statements. She said she is going to attend the police station she said she called. She then said she intended to go to SOCIT the other day to inform them that the allegations are false. She said her lawyer told her that they were not her friends and not to get involved. She agreed that the effect on the father of the sexual abuse allegations was terrible.
I do not accept the mother’s evidence in this regard. The mother continued to raise concerns about the father sexually abusing [X] in her first affidavit, her trial affidavit,[1] with Dr E and Ms F, the family report writer. The mother has raised these allegations over a significant period of time. It is also not credible that Mr L would independently make allegations that the father sexually abused [X].
[1] The mother’s Counsel submitted that this section of the mother’s trial affidavit was simply copied and pasted from the previous affidavit. That is not a proper explanation and the mother swore the affidavit and adopted it as true.
Whilst the mother tried to distance herself from these allegations, she has continued to raise them and not only in a historical context.
Sinker incident
In her trial affidavit, the mother says that when [X] came home in January 2017 he was nervous and unwell. She says that [X] told her that, after some encouragement as he has said that the father tells him to keep secrets, “daddy wanted to kill me and he made me swallow a fishing sinker.” She took him to the doctor and he was x-rayed where a lead sinker was found in his abdomen which he passed after a few days. The mother kept the sinker and says it was unclear to her and medical staff as to whether [X] swallowed it or was inserted into his anus. She says she did not report it to any other authorities, apart from the doctor, as she was afraid of the father and what he may do to her and what he may say to other people about her.
The father was cross-examined about this incident by the mother’s Counsel. The father said he uses a different type of sinker. The father said he believed the mother has gotten [X] to say those things. He agreed that if the mother’s evidence is correct that [X] told his mother that the father made him swallow the sinker that would give her cause for real concern.
The mother was cross-examined about this incident. Her evidence about the timing was inconsistent. The mother agreed that the father did not see [X] between Christmas Day 2016 and March 2017 when the mother brought [X] to …Shopping Centre and allowed a 20 minute visit. The father’s Counsel asked the mother about the inconsistency in her oral evidence with her affidavit evidence. At [23] the mother says the concerning incident occurred in January 2017. [X] came home after spending time with the father and was “obviously unwell”. She says [X] passed the sinker after a few days. When cross-examined the mother said it took [X] a month to pass. She then said it not more than a month.
The mother agreed with the father’s Counsel that she took [X] to see the doctor on 8 January 2017 when [X] complained that his father made him swallow a fishing sinker. The mother then said that the father and [X] went fishing on 8 January 2017. This was not put to the father in cross-examination.
The letter from Dr M dated 9 February 2017 says the sinker passed through [X]’s rectum. In that letter Dr M says the mother and [X] presented to his surgery on 18 January 2017.
The mother emphasised in cross-examination that it was [X] who said he did not want to see his father. She said he was distressed.
The mother agreed that she did not tell the father and [X] did not see his father for 15 months after the sinker incident. The mother then declared that she told the father that [X] refused to come and see him. She conceded that she did not tell the father about [X]’s allegation. She says the father was not happy and that she does not remember what he said when she told him that [X] did not want to see him. She said that she thought the father might come up to see him. When asked if she told him he could come up, the mother replied that he has always been able to come up. I do not accept that that is the case. I prefer the father’s evidence on this topic.
The father’s Counsel asked the mother what she did about the issue in February 2017. She said she did not do anything and said she could not remember when she called the father again. She emphasised her answer. She agreed that the father made attempts to call her and called her father but that he could not get hold of her. I accept the father’s evidence that he made multiple attempts to contact the mother, both directly and via her father, and the mother did not reply.
The mother agreed that she and her father go fishing with [X], as does her brother. The mother conceded that there is a sinker set at her house and that perhaps [X] could have swallowed the sinker there.
The mother’s evidence is vague and the timing does not make sense. I accept the father’s evidence that he did not see [X] after Christmas Day 2016. I find on the balance of probabilities that the father was not responsible for [X] swallowing the sinker.
[X] keeping secrets
The father says that [X] told him “there is stuff I am not allowed to tell you” when he was driving [X] home in April 2018. The father questioned him and he said his mother told him but he could not remember the secret.
The father says that his mother had told him that [X] had mentioned secrets to her. Whilst his mother was in court during the trial supporting her son, she did not swear an affidavit. This is a significant omission given she is living with the father and [X] and she takes [X] to school each day.
If [X] has been told to keep secrets then that places him in an impossible position and can lead him to feeling conflicts of loyalty. Such emotional hurdles should not be placed on a child.
[X]’s birthday
The father refused to allow the mother to speak to [X] for his seventh birthday on …2018. The father responded to her text request by saying that the Court orders do not allow telephone contact.
When the father was cross-examined about this, he said that when the family consultant gave evidence she recommended no telephone contact because he couldn’t monitor what the mother was saying to [X].
The father said he was sure that the family consultant said this evidence on 28 March 2018 but the transcript does not make any reference to this. The father presented as inflexible and not very proactive. When it was put to him that he could have monitored the phone call, he said that he was sorry but he followed the advice as to what he knew. He said in the same circumstances with the same advice he would do the same thing. This shows a limitation on his level of insight and ability to meet [X]’s emotional needs in this regard.
When the ICL’s Counsel asked the father to reflect that in hindsight would it have been in [X]’s best interests to monitor the call, the father said no and that he followed the recommendations of the family report writer. The father showed a lack of insight when cross-examined about this topic by both counsel.
[X]’s views
The father accepted in cross-examination that [X] says he wants to go back to his mother. The father said he thinks that [X] says things to him that are not accurate and that [X] is confused about the sudden changes in his living arrangements.
The father said the explanation he gave [X] was that he needed to go to a better school and that the Court said he needs to go to a better school. He said that was all he has told him. He agreed that [X] has asked to go back to Town B to see his mother and that he told him he was not too sure as it was up to the Court to decide.
The mother’s Counsel suggested to the father as this was the only explanation [X] was given, [X]’s making comments about being taken from one school to another school was his way of trying to make sense of his situation. The father said that [X] claimed that he had stolen him from his school and that when he asked who told him that, [X] said “my mum hasn’t said anything”. The father said he did not mention the mother to [X] before he said this.
The father rejected the proposition that [X] could have made the comment about being taken from his old school as a way of trying to make sense of his change in living arrangements, however this is one area where I think the father’s insight is somewhat limited. [X] has experienced several significant changes in the past several months. It is likely that [X] is trying to make sense of it and may well be saying those things to try to make sense of it, as well picking up on comments of the mother.
I accept that [X] misses his mother and would like to live with her. Given [X]’s age and the risk issues involved, whilst I acknowledge his views I can place limited weight on them.
The family report
Ms F completed the family report in this matter.
Ms F, observed and recorded the mother’s reported distress at the change of living arrangements. The mother told Ms F that she would comply with future arrangements for [X] to see his father. She acknowledged that since living with his father, [X] appeared well cared for and was doing well at school.
Ms F referred to the previous child protection investigations into the mother’s allegations of sexual abuse and other harm allegedly perpetrated by the father and the fact that those investigations found no evidence of harm by the father. Rather, they raised concerns about the mother’s mental health, the mother making false allegations and the emotional harm to [X] as a result of that.
Ms F identified the issues in dispute and further issues she identified during the assessment. The risk issues include the mother’s allegations of the father sexually abusing and harming [X], the concerns by the protective agencies about the mother’s mental health and the detrimental emotional impact on [X] of the mother making false allegations against the father.
Other risk issues identified are the father’s use of cannabis to self-medicate and the mother’s possible use of illicit drugs. Ms F noted significant concerns about the mother’s mental health.
The father told Ms F that he ceased using cannabis in April 2018 and had found Dr N, a pain management specialist, very helpful and will continue to see him.
He expressed concerns to Ms F about the mother’s behaviour including telling [X] to keep secrets and that she stole [X].
The mother told Ms F that her supports include her parents, her brother and two friends. She was not engaged with any counselling or support services. She sees her GP Dr M regularly. She said she has been diagnosed with ADHD and anxiety. She said she may be depressed as a result of [X] being removed from her and she was considering future counselling.
She said she was distressed reading Dr E’s report and couldn’t read parts of it. She disagreed with his assessment and said she would consider returning to see psychiatrist Dr O. The mother also denied the concerns raised by the family consultant in the s.11F assessment.
At [34] of the family report Ms F records the mother telling her:
…Ms Everill stated that she is of the belief that Mr Lepson is not currently abusing [X] however remains convinced that as a younger child ‘he had unpleasant times with his father, he talked about what happened from the age of two years, why would he do that?, [X] has said he wants his daddy in jail’. Ms Everill denied making false accusations in this area. She made comment that Town K SOCIT were currently investigating false accusations made by Mr L against Mr Lepson. Ms Everill made comment that some of the accusations made were ‘not fair on Mr Lepson.
Her observation of the mother during the assessment as having difficulty remaining focused and being scattered and unclear in her views is consistent with my own observations of the mother in the courtroom.
The parties have limited direct communication. The father complained that the mother’s communication is erratic and unclear. He was also concerned that the maternal grandfather did not always supervise the mother’s time with [X].
Ms F also spoke to the maternal grandfather. He said he supervised the mother’s time with [X]. He said the mother and [X] are close. [X] misses his mother and wants to go home. He had no concerns about the mother’s care of [X] and was not aware of any mental health diagnosis for her and that he and his ex-wife do not have any concerns for the mother in this regard. He said the mother does not use drugs. He was shocked when [X] was placed with his father. He was willing to keep supervising but does not think it is necessary.
Ms F described [X] as a bright, friendly boy who was able to express his thoughts and feelings in a way that is consistent with his age. He described his distress at being separated from his mother. He misses her, feels happy when he sees her and wants to play with her more.
[X] says he loves his father and paternal grandmother. He was nervous about going to a big school and said that he had been living with his dad for months and did not know when he is going back to his mother’s.
The father acknowledged that the change in residence was challenging for [X]. He told [X] that it was a chance for him to go to a better school and it is better for him to do that with his father. The father told the report writer that [X] misses his mother and can be sad on Sundays which is the day he has supervised time with his mother for six hours.
The mother told Ms F that last year [X] was scared of his teacher and had anxiety. She said he was sent home by the school many times as he was scared.
Ms F also spoke to [X]’s current school. The principal advised that when [X] first started at the school he was behind because of his absences during his prep year and had trouble with concentration, socialisation and emotional development. He has progressed well. The father is regularly in touch with the school.
Given the concern about the mother’s mental health and associated risks, [X] will need support and therapeutic counselling to help him adjust and understand his living arrangements.
At [56] Ms F says:
It is highly likely that [X] has been exposed to maternal views, comments and behaviours that reflect lack of trust in the father, this placing [X] in a difficult situation. The continuing active involvement of the maternal grandfather in particular during maternal arrangements remains indicated as a means of ensuring the safety and well-being of [X]. It is further considered that there would be benefit to the maternal grandparents having the opportunity to more fully understand the nature of identified maternal risk in respect to maternal mental health, this assisting in their understanding of decisions made in this matter. Consideration to be given to Mr and Mrs Everill being formally permitted to read the maternal psychiatric assessment report in order to enhance their insight into issues of maternal mental health, vulnerabilities and risk.
Ms F was unable to undertake an observation of the mother and [X] together as the mother missed the initial appointment. The mother denied that she missed it because just couldn’t face it as the mother said she was told that it was with Ms F not Ms G.
Ms F was cross-examined. She confirmed that as she says in her report she found the mother scattered, which is consistent with her presentation in court. Ms F said that she had a sense that the father would co-operate with [X] spending time with his mother and that he knew that [X] missed and loved his mother. She was less convinced about the mother. Whilst the mother appeared to have some understanding of the importance of [X] seeing his father, Ms F said the history showed an inconsistency of her facilitating paternal time and she was not convinced that the mother had a good understanding of the effect of [X] of not seeing his father. She was concerned about the false allegations with respect to the emotional impact on [X] and she said she was not sure that both had a full understanding about the nature of the mother’s concerns, but it is concerning that [X] is subjected to repeated and intrusive investigations where none of those concerns have been verified. [X] has some understanding that his mother worries about the father and this may have an impact on his relationship with his father and his sense of being fully confident and trusting of his father.
Ms F was unclear as to whether or not [X] is aware that the mother thinks his father sexually abused him. [X] was unclear about the reasons for the change in residence and did not appear to understand the mother’s concerns about him and was unclear about whether he was to remain in his father’s care or whether he will return his mother’s care. She said the sooner that [X] is given clear information about his living circumstances with child focused reasons as to why those decisions were made will assist him to settle. Ms F confirmed that her recommendations were final recommendations and not interim recommendations.
Ms F said it would be best for [X] to be told by his parents and that might be positive if he was told about those decisions in a therapeutic setting as it will not be easy for [X]. I do not consider that the parents would be able to address this with [X] without professional assistance.
Ms F confirmed that the quotes she set out at paragraph [33] of her report were a direct quote from the mother and she is concerned about what the mother may be saying to [X] but is less convinced that [X] has a clear understanding about the nature of those concerns.
Ms F said that [X] spoke to her positively about the father’s family.
Ms F spoke about [X] at [39] of her report noting:
[X] was able to describe the current arrangements of spending time with his mother each Sunday adding ‘it is for six hours, my Pa has to be there, we watch videos on my iPad and on mum’s phone, we go and eat at McDonalds and sometimes we go to the park’. [X] expressed his love for his mother adding that he was reluctant to leave his mother at the end of the arranged time. He added ‘I don’t want to go or lose my mum, mum says if I keep talking to my teachers at my new school and say I am unhappy then the Court could bring me home’.
Ms F thought [X] was pretty open about talking about his feelings and she suspects that that is something that he heard his mother say. This is concerning as it is involving [X] in the adult dispute. Ms F further said the mother gave a lot of reasons as to why [X] missed a lot of school and said she suspected that the mother did not take responsibility for that having occurred.
The mother told Ms F that she did not believe that she had any formal diagnosis of illness and she thought she had some anxiety and some depression after the change of residence, as well as Attention Deficit Disorder. Ms F said it did concern her that the mother had not done anything about her mental health and that she spoke to her about the importance of following through with the order that was made. The mother spoke about being willing to reengage with a psychiatrist but Ms F was not aware at the time of the interview if that had happened.
Ms F acknowledged the limitations on the father being able to do activities with [X] on the weekend, such as going camping, with [X] seeing his mother every Saturday. However, she said given that [X] missed his mother so much, there are advantages to him in having weekly contact and at age seven alternate weekends will feel like a long time to him. She agreed that the time did not need to take place in Town A and could take place in Melbourne. She suggested that the mother could also see [X] for a dinner mid-week. At [X]’s age the frequency of visits rather than the number of hours is what is important. When asked if it was hard for the mother to think of things from [X]’s point of view rather than her own, Ms F responded that it was a complicated question, however she strongly believes that the mother loves [X] but that does not always translate to full sensitivity for [X]’s needs.
Ms F has no concerns about the father’s care of [X].
The mother’s Counsel asked Ms F on her view about the mother collecting [X] from school, having overnight time at her brother’s house in Melbourne and delivering [X] to school the next day. Ms F was not convinced that if the mother took [X] to school even with a supervisor, that would help [X] settle as the mother was still strongly of the view that they should return [X] to her care. She was also not convinced that the mother would be able to contain her own grief at the school. Ms F said based on information she had received, she would be concerned about overnight arrangements and not convinced that the mother would be able to remain calm and sensitive to [X]’s needs overnight. She promotes a cautious approach and that there be no significant change in the arrangements prior to the mother obtaining the recommended psychiatric treatment. She said on face value she could see that it would be reasonable for the mother to take [X] to school and that this could be seen by [X] as her endorsing his new school but she was not convinced that the mother would be able to manage that positively.
Ms F said that the major issue is the mother’s mental health and her capacity to appropriately interact with [X]. She said it is important that the paternal grandfather is willing to intervene if he hears or sees any interaction with the mother and [X] that is not appropriate.
Ms F said that the situation is very hard for [X] as he obviously misses his mother with whom he has a bond and with whom he is used to living with. At his age he does not have a full understanding of what may or may not be appropriate parental responses. It was clear from her interview with him that he does not understand why the change occurred and how long the change is likely to last.
The mother’s Counsel suggested to Ms F that as the father had told [X] the change in living arrangements was so that [X] could go to a better school, that [X] makes comments about not liking his school as a way of working through what has happened, as he sees those comments as a way of achieving what he wants and that is to return to his mother. Ms F said that she suspected that [X] had heard comments from his mother and that if he says he is unhappy with living with his father and school that might affect changes in the living arrangements. She further said she suspected that the comments that [X] has been making are a combination of repeating what his mother says and his genuine feelings.
Ms F said it is important to acknowledge [X]’s feelings about his mother but that he does not have a full understanding of the risks to him while he is in his mother’s care. Ms F suspected that the comments his parents made to [X] about school was a palatable way of explaining to [X] that his living arrangements had changed. She acknowledged that [X] had said that there were a lot of prayers and the school is very different but that she had spoken to the school and said that he was making pleasing academic and social performance at his current school. She rejected the contention that [X] has been subjected to paternal family influence because of the paternal grandmother working at the school. She was also not convinced that the fact that the paternal grandmother transports [X] to and from school would influence [X].
Ms F said there are some advantages to having the maternal family supervise the mother’s time and understands why the father may have different views. There are advantages in professional supervisors because they are trained to respond to issues as they arise sensitively and can provide full reports or partial reports. She said that the recommendations should try to reflect the best interests of [X] and cover the situation that if the mother positively engaged with treatment that the transition to another arrangement would be considered.
Ms F said the advantage of the family member being the supervisor is that it would be as normal as possible and that whilst professional supervision has advantages there are also restrictions. It would also mean [X] will have to be introduced to any new person and it would be a new experience and [X] would have to be given some sort of explanation.
The mother’s Counsel suggested to Ms F that [X] could be given a timeframe of where he will be in the event the mother is able to stabilise her mental health within eight weeks and that [X] could be returned to the mother’s care. Ms F said there was a possibility of making interim orders so that the mother is given the opportunity to address her mental health. However, there would need to be a commitment from the mother to engage. It is not known whether or not it will be successful and whether it will improve her parenting capacity such that she can care for [X] full time. She acknowledged that [X] has been in his mother’s care all his life but there are long-term concerns about the mother’s care that are not easily dismissed.
The mother’s Counsel suggested to Ms F that it would be unfortunate if the loving relationship that [X] experienced with his mother was overturned permanently due to [X]’s change of living arrangements. Ms F said she had reservations about that proposition. She stated that as there is a reported history with DHHS and long-term issues with respect to contact and some very concerning maternal responses to [X] which indicate mental health issues and concerns that do not appear to be accepted by the mother that in this context it is very difficult to predict the mother’s responses. I agree with that assessment.
Ms F says she suspected that [X] has been exposed to concerning maternal behaviours which probably impacted on his education, social development and his relationship with his father given the mother’s views that [X] should not see his father. She said [X] is receiving an appropriate level of care with his father but that once a decision is made about [X]’s living arrangements, it could be challenging for the father and she recommends that the father seek counselling. If [X] remains living with his father he will have a loss and grief reaction which is important to acknowledge.
I place significant weight on Ms F’s evidence.
Mother’s supervised time
The father says that [X] has settled into his care and that it is not good for the mother to be encouraging him to return to her care. He agrees that [X] misses his mother, enjoys the time with his mother and wishes he had more time with his mother.
The father agreed that he was seeking that the mother’s time be professionally supervised. The father said it was necessary because of the statements that [X] has made about being stolen from his school and he is concerned that there may be other things of which is he is not yet aware as he assumes that the mother made [X] promise not to tell anyone. He conceded that he had not made any enquiries of contact centres. When asked what he would propose if the contact centre was not available for several months, the father said he was not sure and he would have to look at options. He also conceded that he was not aware of the cost of professional supervision. The father should have made these enquiries before the trial and this is another example of his somewhat passive approach.
The mother’s Counsel asked the father why it is not in [X]’s best interests to spend time with the mother at her brother’s house in Melbourne on weekends, noting the mother’s concession that [X] should see out the school year at his current school. The father said he has only met the mother’s brother once and he would prefer a professional supervisor to a family member as they don’t seem to do a good job and he does not have much trust in them.
The father did not facilitate the mother’s time with [X] in June 2018 as he believed that the maternal grandfather was not supervising the mother’s time after [X] disclosed to the paternal grandmother that his mother tells him to tell secrets to his teachers. The father was concerned about this. He said the purpose of the supervision was to ensure the mother did not say things and put ideas into [X]’s head. He accepted that the school has advised that [X] has not spoken about his mother at school. It was clear from the maternal grandfather’s evidence, the father was justified in his concerns about the maternal grandfather not supervising the mother’s time properly.
He disagreed with the proposition that the mother has successfully parented [X] for six and a half years, as he said that [X] not having his father in his life is not successful parenting. He also disagreed with the mother’s Counsel on the proposition that apart from the period after the sinker incident the mother has facilitated his time and continues to do so. The father pointed out that the mother did not comply with the interim orders. The father’s evidence was that the mother’s facilitation of the father’s time was inconsistent prior to the sinker incident.
The mother’s mental health
The father has a lot of concerns about the mother’s mental health. In addition to the fact that the mother has not done anything about her mental health in the past seven months, the father said the report from Dr E was quite worrying. The father said that he only found out about the mother’s mental health issues during these proceedings and was not previously aware that she has long-term mental health issues.
The father said that his major concern with respect to the mother’s mental health has really occurred during these proceedings since the mother filed her first affidavit. He agreed that in some aspects the mother has done a good job of parenting [X] but that part of parenting is allowing the child have a relationship with the other parent and there was a 12 month period where he did not see or speak to [X]. The father disagreed with the proposition that the mother supported his relationship with [X] until the sinker incident and said that the time could sporadic in the six to 12 months prior to that.
The father’s view is that the mother is a risk to [X] both because of her failure to engage with mental health services and because of Dr E’s report. When the ICL’s Counsel asked the father what he would propose if the mother received glowing reports from psychiatrists, the father said he was not sure what he would think in that scenario.
It is significant that the mother’s trial affidavit does not address her mental health. This is particularly so given order 24 and 25 of Her Honour Judge Bender’s orders made on 28 March 2018, which are as follows:
24. The Mother do all things necessary to engage with a mental health professional within 7 days of the date of these orders and provide to the Independent Children’s Lawyer the name and contact details of the mental health professional and an authority to the Independent Children’s Lawyer to contact the mental health professional and obtain information about the Mother’s attendance and her engagement in treatment.
25. The Mother authorise her treating psychiatrist to speak to the family report writer.
The mother agreed that she heard Dr E’s evidence in Court on 28 March 2018. She said she believed that residence was changed because she was an unfit parent and that there was also concerns about matters in relation to school attendance.
The mother was asked why she did not comply with the orders of 28 March 2018 to see a psychiatrist within seven days. She agreed that she did not do it and said that she is doing it now. She claimed that Dr O was very hard to get into. She claims she saw the GP and told him that she needed to see a psychiatrist or psychologist. She said at the time she went to see her GP she made contact with Dr O but that she did not have a lot of information about Her Honour Judge Bender’s orders. She says she has that information now. Her answers were simply not credible. The mother was legally represented and remains so. The mother agreed that the Court and Ms G were very concerned for her mental health but that she does not agree that it was an issue. She says she was on edge, nervous and anxious. The mother’s Counsel suggested to the mother that she didn’t agree with those concerns but that she was upset not having [X] with her. The mother said she dealt with her mental health issues by seeing friends and went horse riding. She then said that she will resume seeing Dr O. The mother was unable to give an explanation as to why she did not do anything knowing the concerns of the Court and the other parties. In submissions, both opening and closing, the mother’s Counsel tried to explain away the mother’s failure to do anything, instead talking about the mother’s difficulties in coming to terms with the change of residence and addressing those concerns. I do not accept that the mother was not aware of the details of the orders that were made. She was in Court and, furthermore, she is represented by a very experienced family law solicitor. It is unfathomable that she would not be told of the importance of addressing that issue prior to the trial, particularly given that she is seeking for [X] to be returned to her care. The mother’s Counsel asked the Court to make interim orders, rather than final orders, to give the mother the opportunity to address the issue.
When cross-examined about her mental health the mother denied ever being diagnosed as having psychosis or schizophrenia. She says that when she was in her twenties she was unwell so she saw a GP and she was prescribed Zyprexa for mood imbalances. She says she was not hospitalised and was never told that she had schizophrenia. She says she was prescribed Modavgil for attention deficit disorder and was prescribed Diazepam for anxiety.
The mother denied receiving the disability support pension for her mental health and claims she received it because she had bad wrists and was unable to work. She says her wrists have healed now.
The mother was cross-examined about paragraph [30] of the family report where Ms F records that in the interviews on 25 September 2018 the mother her that she had still not engaged a psychiatrist. As at the date of the hearing a month later, she still does not have an appointment with her psychiatrist.
The mother agreed that she is not working currently, as she does not currently need to do so as she sold the property. This means that she had six days a week where she could have arranged and attended an appointment. At first, the mother said she could not give an answer as to why she waited for six months and she then said “I was very scared. I’m sure I’ll do something. I don’t know. Everything I do seems to go wrong so I put it off.”
The mother was cross-examined about her GP Dr M’s notes, which were tendered as Exhibit E, and the concerns about the mother losing a lot of scripts for Modavgil. It was put to her that she suggested her father steals her scripts and she might have to move to avoid that occurring. The mother said her father does not use that medication. The mother said she remembered telling Dr M in February 2017 that someone drugged her and stole all her medication. She could not remember Dr M telling her that he could not keep replacing scripts and that this was the third time that she claimed her medication was stolen. His notes states that in April 2017 the mother had told him her father had taken her medication and he recorded that he would not do this again. The mother said the medication was put in an open fire and she does not know who put it in the fire. In June 2017, Dr M recorded that the mother’s Modavgil use was getting out of control. He recommended she see a psychiatrist for long term management. On one occasion his notes recorded that he gave the mother a ‘stern warning’ and told her that she would have to find someone else to prescribe her medications if this continued. The mother denied this and said that he still prescribes it. There is another record two days later of her claiming medication stolen again and him giving her a stern warning. The mother said she did lose the scripts all those times and that her medication was once burnt in a fire.
The mother’s evidence about her prescriptions going missing and being stolen defies credibility and rather is consistent with someone taking more medication than prescribed.
The mother has seen Dr O, psychiatrist, at various stages over the years. She said when she saw Dr O in 2006 she was just down and had anxiety. She said she did not remember what year she spoke to him about alcohol problems. She then said she never really had a problem with alcohol but she could have lost her license as she was caught drinking and driving so her family was on her back. Again, the mother is minimising her problems. The mother did go to a detox centre for alcoholism.
The mother said that Dr O did help her with her mental health and he was great. She said that apart from depression, anxiety and attention deficit disorder she does not have any mental health issues.
The mother denied having a problem with her memory. The mother was a poor historian when giving her evidence.
The mother denied being prescribed Dyspraxia for psychosis. She said she had low mood, was depressed and had anxiety and that was why she was given that medication. Further notes of Dr O were put to her including his recommendation that the medication would not be good for her because she was pregnant. The mother said she decided to take herself off the medication, then said she didn’t see him for 11 months and that she could not recall Dr O advising against completely stopping the medication but that it is possible that she did. She agreed that she asked to be transferred to Dr P because she was not getting on with Dr O so well. She said that Dr O would say things like [X] would one day be going to see him and that concerned her.
The mother said that she always took medication in accordance with the scripts. The small dose wasn’t working and Dr O would not increase it so he referred her to Dr P. In November 2015 the mother asked go back to Dr O. The mother said at that time she was not getting along with Dr P. The mother then said she was telling the truth.
The mother told Dr P that medication was stolen out of her car on one occasion and that Dr P was not happy with this as it was a government authority prescription. When it was suggested that Dr P did not believe that, she said she had signed a statutory declaration. The letter from Dr P to Dr O records the mother as being very evasive and hesitant. She then conceded that it was Dr P’s decision to revoke the authority script for her medication not hers.
The mother then claimed that her mother takes the same medication as her and sometimes her mother finds it hard to travel so she helped her out by giving her mother her own medication. She disagreed with DR O’s note recording her telling Dr M that her father had been taking her medication and says she did not tell him that.
She agreed that her evidence is that police got things wrong, Dr O got things wrong, Dr E got things wrong and Ms G got things wrong. When it was put to the mother that perhaps she does not recall things correctly, the mother said “it doesn’t make me look good. No I can’t comment I don’t know I haven’t lied through this situation”.
Exhibit B was a referral from Dr M to Dr O dated 20 September 2018 referring to the mother seeing Dr O to discuss her medication. The mother agreed that that would be a good idea. She then said that she is to be on different medication and that she would also like to see him for [X].
When it was suggested to the mother that she does not have a good understanding of her mental health, she conceded that that could be the case. The mother was asked how she will explain Dr O as to why she is attending upon him again and she said she would tell him situation with [X] going to live with his father. She said she thinks, and hopes, that Dr O will help her but she is concerned that he might refuse to see her given the issues with Dr P and that previously she has not got along with him either. She said she is happy to work with Dr O but given her evidence I am not so confident about that.
The mother conceded that she did not take [X] to a psychologist to address his anxiety. She then said that she received a referral from Dr M a long time ago but never went ahead with it. The mother said that [X] would tell her he was anxious about seeing his father. The ICL then asked the mother if she did not speak to the father and sought no assistance from any professional, how she thought that issue would resolve. The mother replied that it has not resolved by just giving it time. When asked how the Court could be confident it will not happen again if [X] returns to live with her, the mother said that she will arrange counselling for herself and counselling for [X] and there would be court ordered time between [X] and the father. Whilst the mother may be sincere, the Court cannot be confident that she will be able to adhere to that if [X] was returned to her care.
The ICL’s Counsel then put to the mother that her evidence was difficult to follow and asked if it was possible that some of this is due to her mental health. The mother said she could not answer that and said she was very nervous and that she had to go and get help.
The mother claims that she has completed five drug screens. The ICL’s Counsel cross-examined the mother about how the drug screen evidence was inconsistent and she said she had been told that she had missed two tests by her lawyer. She said that the benzo detection would be the Diazepam and the opiate would be the Modavgil.
The Court cannot have confidence that the mother will address her issues and that there will be a quick fix.
The father’s mental health
The father said that whilst he has long-term mental health issues he does things about it, such as being proactive in seeking treatment.
The father rejected the proposition that his mental health was such that he was not able to parent and that he left the parenting to the mother.
The father suffers PTSD as a result of an explosion when he was in the army. The father said that in 2000 when he was in the Armed Forces there was an incident at a checkpoint. He said they had to dump their rubbish at the checkpoint and somehow two grenades got into the rubbish and exploded. He was injured.
He has previously engaged with Veteran’s Counselling Service when he has needed help.
He was cross-examined about the questionnaires that he has had to complete for The Department of Veteran Affairs from time to time. The father said he completed those accurately. In the lifestyle questionnaire he completed on 9 June 2015, he reported he did not have a family or social life. The father answered initially that it depended on what he classed as social life and said he does not go out and instead stays at home. He answered a question about his condition stating that his condition is all consuming and that he is in constant pain and is withdrawn and angry. He agreed that that was accurate as at June 2015. He answered the question about how his disability affects the way he lives as being angry, in constant pain, having intrusive thoughts, social isolation and mobility issues. He agreed with that answer.
The mother’s Counsel cross-examined him about the lifestyle questionnaire he completed on 9 September 2017. In answer to the question about how he believes the disability caused him to get on with other people he said that his PTSD, drug abuse disorder and chronic pain affected all aspects of his life apart from going to work as he was reclusive and not functioning. The father replied that at the time he was not seeing his son. In answer to another question, the father said that he is withdrawn from friends or family relationships and relies completely on his mother for much of the tasks he cannot do himself including grocery shopping, cleaning, washing up and heavy gardening.
The father said he was required to complete these forms each time he made claim under the Veteran Entitlements Act 1986 for an increase in his disability support pension payment. He said his answers were honest and forms were filled out by an advocate based on his answers. He read it before he signed it. He said the answers were true but that his advocate worded it in a certain way.
The mother’s Counsel put to him that in answer to the questions about his family on those forms he did not make any reference to [X]. He said that the severity of these ebbs and flows and on 7 September 2015 there was extra stress as he was navigating the legal system and worrying about his son not seeing him. He said that his anxiety was extreme at the time filling out a form, that he was virtually housebound except for work and that he had completely withdrawn from everyone except his mother and that even that relationship was strained.
The father said that when he saw [X], including in 2015 at the time of completing the form, he would push past the pain and go out of his way to take [X] to see his extended family to play with his cousins and do activities with him.
The mother’s Counsel asked him if this was accurate then when he says his capacity changed. The father replied in March 2018 when he began seeing a pain specialist.
The father agreed that he did not tell the Court that he was greatly disabled as he was more concerned with the mother’s mental health than his own.
The father was cross-examined about a mental health clinical progress note dated 10 November 2014 which said he presented as erratic and highly anxious with pressured speech. He agreed that he was seeing [X] at that time and said that he went voluntarily to these appointments because he was starting to struggle and he wanted to stay on top of his mental health.
The father agreed that he refused the offer of inpatient treatment to cease cannabis and to receive trauma therapy and said he did so because he couldn’t take the time off work and that it was an offer, not a demand. He did consider that he was in an appropriate state to have care of [X] on weekends.
The mother’s Counsel put to him that the record of 10 November 2014 which records him saying that he has a 15 year habit of daily use of 1 to 2 grams. He said he did not use as much as one to two grams a day since the incident when he was in the army but that his use varied over time. The father said he was not sure what he said and that he would have said roughly daily use which is not the same daily use. The father accepted that his cannabis use was a substance use disorder. He denied that the mother was accurate when she said his cannabis use was daily when they were in a relationship. My impression is that he is minimising his use.
The father agreed with Counsel for the ICL that his cannabis use was problematic prior to seeing a pain specialist in March 2018. The pain specialist, Dr N, prescribed him Lyrica which the father said has been successful and that he is now on the lowest dose. He agreed that prior to this he was taking cannabis for his pain. He agreed that it is hard to abstain from a habit of 15 years and said that he stopped after the March court date and the next few weeks until he got into the pain management clinic. He said it was difficult but that once he started the pain medication it was not.
The father said that Dr N has told him he does not need to see him anymore just to keep taking the Lyrica. The father said he has not received any education about drug and alcohol dependency and said that it was easy to stop his cannabis use once he was on pain medication. He said he will follow the advice of his GP. He is not currently seeing anyone for his mental health and says that when his PTSD starts to flare he sees someone at the Veterans Counselling Service. He says he has engaged that services on many occasions over the years.
The ICL’s Counsel suggested to the father that his answers to the questionnaire for the Department of Veteran Affairs and his affidavit contains significant inconsistencies. The father said he did not think PTSD issues should be referred to in his affidavit and he does not think they are relevant to his ability to look after [X]. This answer shows a lack of insight on the father’s part, particularly given that he raises concerns about the risk the mother poses to [X] is based on her mental health.
The father said his answers to questionnaire now that would be different as his emotional state is better as he has care of his son, the financial pressures are different and he is not in pain.
Evidence of the maternal grandfather
The paternal grandfather (“the grandfather”) was cross-examined twice in this proceedings and when he was cross-examined the first time he was highly defensive.
He said that the allegation that he uses the mother’s medication was a total lie and that the mother has anxiety medication but he never takes it. He also denied stealing a prescription of hers. When asked what he thought of the father he said he has got nothing against him.
He also said the concerns about the mother’s drinking were from a very long time ago and that the mother dealt with that issue herself.
The grandfather swore an affidavit on 6 June 2018 with respect to his supervision of the mother and [X]’s time pursuant to orders made by Her Honour Judge Bender on 28 March 2018. He was responding to the allegations that he has not been supervising the time between the mother and [X] properly. He denied not being present whilst supervising the mother and [X] when they went fishing. He said he sat in the car to keep warm about four metres away.
He did admit that there was an occasion where the mother and [X] went to a movie and he waited outside. He did concede that he did not go to the movies with them as he said he wanted to stay outside and when he was asked if he thought that was supervising, he became highly defensive saying “if you’re suggesting I wasn’t there that is not right.” He then said he has [X] in his eyesight at all times. What was apparent was that he did not always have [X] and his mother within ear shot and did not understand that was what he is required to do. He said he will supervise the mother’s time to the best of his ability and that the Court may think there are issues but the mother has looked after [X] all the time for five years and that he knows she has done a very good job.
It is clear from his affidavit and his oral evidence that he had no understanding that the requirements of supervision was not simply that the mother and [X] are within eyesight but that they also were required to be within his hearing range.
He said he did not know the figures about [X]’s school attendance but knows that he had a lot of trouble going to school and was frightened. He said a lot of children do not like to go to school when they first start attending.
When it was suggested to him that the mother was not doing a good job of parenting by not allowing [X] to see his father, he replied that the mother did a lot. He agreed that they live in the same house but that she is her own person. He then said he did not know anything about what was being put to him about the mother stopping the father from seeing [X].
He agreed that he was in Court on 28 March 2018 and heard the Court’s concerns. He said the mother has a lot of anxiety but is not mentally unwell and that [X] is at not at risk with her. He said he had nothing to do with the sexual abuse allegations and that the only thing he knew about Mr L is what he heard in court, which was that he was a friend of the mother. He then said he was not sure if they were friends or he was her boyfriend. He thought he last saw Mr L earlier this year.
The ICL’s Counsel put to the grandfather that his evidence was that he did not understand why the mother’s time has to be supervised. He replied that the Court required it because they said she could not do the job. When asked to explain further, he asked if it was because the mother did not get [X] to school and then said that he did not know what the ICL’s Counsel was getting at. He said as far as he was concerned, there is no risk to the mother having [X] and she does not need a supervisor.
The grandfather agreed that after June 2018 he went to the ICL’s office. He was asked if he understood after that meeting what supervision meant. He became highly defensive and said that he has supervised others as part of his employment and understands what it means. He then said whatever [X] says has been taken up as a thing against him but he wants to know why they do not take more notice of what [X] has to say. When he was asked if he understood that he needs to listen to the conversations between the mother and [X] he said he has done his best.
After hearing his first round of evidence, I was not confident that the grandfather was a suitable supervisor. The grandfather was in court and heard Dr E and the family report writer give evidence. I granted the mother’s Counsel’s application to recall the grandfather. In the discussions between Counsel and the Court and in light of hearing the evidence of the experts, he was asked if he understood why supervision is necessary at the moment. The grandfather replied that he did and that with regards to Dr E’s statements that morning, he could see that the mother has problems that he has been living with and he did not realise that it was affecting other people that way. He said when you live with someone every day it is taken as a day-to-day thing. He agrees that the mother needs help and hopes that it works out. He said he knew that she was on medication for anxiety but not did not know any of the other things. He was asked if he understood that the mother struggled with perceptions and distortions and he said that he does understand that now and he does understand that she needs supervision. He said he would be on the lookout for changes of temperament and changes in mood. He said that he will listen to [X] and the mother’s conversations to make sure that the mother doesn’t say anything inappropriate to [X].
He said he will console [X] when he becomes upset about remaining living with his father and tell him that it is the best thing that people are doing for him. He said it is important to keep [X] happy and not react to the mother and not react in any way to upset [X] more. He said he is willing to commit to continue to supervise the mother’s time whilst she gets treatments. He said he is able to travel to Melbourne and that that would be better for [X]. He understands that she is not allowed to be alone with [X] and that he needs to be able to hear everything.
He said that if the mother says things that are inappropriate to [X], that he will tell her that that is not the right thing to say and that if she continues to do that he would have to ask her to leave. He said he understood that he would need to tell the father. The ICL’s Counsel suggested to him that he is in a difficult position. He said if that is what the Court wants done then he will do it. He also said after hearing Dr E’s evidence, that what he thought was personality quirks could be the mother having mental health issues.
My impression of grandfather’s evidence was that hearing the expert evidence has been a revelation to him and was no doubt confronting. He impressed me in his change of attitude. I am satisfied that the grandfather now understands both his obligations as a supervisor and why the mother’s time needs to be supervised.
Mr L
The mother denies ever being in a relationship with Mr L. She says he is obsessed with her and has stalked her. She denies the allegations Mr L makes about her.
The father told Ms F that he believed the mother had been in a relationship with Mr L and did not know if that continued or not and said that Mr L uses the methamphetamine ICE and has been reported to the police.
The report of the police incident on 13 December 2017 was put to the mother. She denied that they were in a relationship for three months and that she moved in because of housing issues. She said that her use of drugs was absolutely not true and that she has never touched illicit drugs in her life. She said there was a time when she could not get out of his house and he put his fist in the wall and she had to run. She said [X] was not there. When she was shown the police record the mother said that she did not have any knowledge about this happening and that it sounded very unusual. She said she did not have a relationship with this person and that he is not right in the head. She said that she was having a music lesson with him and he would not let her out. The mother started to cry. She says she did not call the police.
When the ICL’s Counsel cross-examined the mother about Mr L and asked her if she was maintaining that she was there for a music lesson the mother said no, she been there before and she was frightened of him as he is a very scary person. She said he threatened her, her son became involved, and that he was ruining her life so she took out an intervention order against him. She then said that the music lesson was the second contact that she had with him after she first met him at a shop with a friend. She then said that she was seeking the music lessons on and off once or twice a week and again denied that they were in a relationship. My impression is that the mother was trying to give the impression that she did not know him and the reference to simply seeing him for a music lesson lacked credibility.
She said that [X] went with her once to Mr L’s house. She said that that he took [X] fly fishing but he was aggressive so they left and [X] said he did not want to see him again. The mother agrees that she says that Mr L told the police that the father sexually abused [X]. She said she does not know why he did this and then said she does not know how he got that information. She said she did not tell him that the father was doing this and the father was not even seeing [X] at the time. It was put to her that she must have told him and she then said that she told him at one stage about her concerns and told him about the sinker incident. She showed Mr L the x-rays when they were in her car. The mother’s evidence was changeable and inconsistent. It does not make any sense that she would tell any of this to someone who she was never in a relationship with or at least was a friend.
Dr E
Dr E prepared a psychiatric assessment of the parents. He referred to the mother’s affidavit and the allegations she makes in it.
The father attended for the assessment on 7 August 2018. The father told Dr E he has a best friend he confides in and friends from the army that he texts. He said he is close to his mother and has a working relationship with his sister. He said that [X] is close to his cousins, being his sister’s children. He said he does tend to be a loner. He has received significant treatment for his PTSD and has undergone appropriate trauma treatment. Dr E reported that the father did not present as clinically depressed but did impress as anxious, particularly at the beginning of the interview. He did not become distressed or agitated when providing his account. He did not present with any unusual emotions or ideas or any evidence of any thought disorder or delusion. He did present the themes of depression and anxiety and features of trauma and Dr E’s diagnosis is that post-traumatic stress disorder is largely in remission. The father presented as committed to [X] and that his frustration appeared reality based and impressed as being obviously committed to [X]. The father continues to be concerned about the mother’s mental health and is supportive of [X] having his relationship with his mother through supervised contact.
Dr E interviewed the mother on 8 August 2018. When he asked the mother if she understood the nature and purpose of the assessment, the mother replied that she understood the assessment was requested by the Court and then became “lost into a narrative which was at times confused and confusing.” That is consistent with the mother’s evidence in court. She acknowledged that she did not attend court on a number of occasions and she said this was because of “pure fright.” She acknowledged that she was arrested and brought to court. She said she recalled the interview with Ms G and considered it a lie. She said she came across as scattered. Her account of events were confusing and contradictory. The mother told Dr E that she has been faced with “horrific statements” from others.
Dr E sets out what the mother told him about her concerns about [X]’s safety with the father. She told him the same thing about taking [X] to see his father for four years and then saying “he didn’t want to see his father, not at all. I don’t know why.” She then said that she still took [X] to see his father for two and a half years.
At page 7 of his report Dr E sets out what the mother said about her concerns for [X]:
Ms Everill became concerned. [X] expressed unusual things, told her that his father touched his bottom, and would say ‘Mummy no more touch baby’s bottom’, so she kept him home. Her concerns continue in the context of the current contact arrangements. “He says things now when I see him on weekends, ‘Dad’s written them down’. [X] tells me that his father sleeps with him on weekends and he sleeps in his own bed during the week.” Ms Everill mentioned blood on [X]’s bottom last weekend. She said he was very quiet. There is baby talk, ‘Daddy’s touching my front bottom’. Ms Everill said that [X] is very avid about it. She remains very concerned for [X]’s wellbeing. “He’s a frightened child. He wants his father in jail. We [sic] wants to come to his Pa’s in the country and his Mum and his toys. He doesn’t want to see his Dad anymore.”
Ms Everill said that she’d had serious concerns for quite a while. When asked how long, she told me 5 ½ years, “it’s child abuse”. She recalled a report from SOCIT in Town K who found there was not enough evidence. There were further reports. She recalled making a notification in earlier, reporting that [X] presented with genital lice and a sore penis. I note the DHHS report in that respect (4th July 2018) indicating that [X] was examined by staff at Royal Melbourne Children’s Hospital who found no evidence of genital lice or a reason as to why [X] would be complaining of a sore penis. I indicated to Ms Everill that at the time there were concerns about her mental health. It was further noted that she was taking treatment for Schizophrenia. Ms Everill said this was not a diagnosis that had been made in regard to her at any time.
The mother denied being motivated to make false allegations as alleged by SOCIT. She acknowledged that SOCIT found no evidence of abuse. Dr E asked her if she had changed her views in light of this. The mother said: “it makes me wonder. As a mother I’ve seen a change in his behaviour. I believe there is abuse of some sort.”
When cross-examined, the mother denied telling Dr E that she had serious concerns about [X]. The mother insisted that Dr E asked her if she had concerns about [X] five times and she said no. “That is my answer. In the past at times yes. Yes five times I said no. [X] is not complaining. I see him on Sundays. I have no concerns.”
The mother said that the concerns she had told Dr E about first were in 2013 when [X] was acting unusually and scratching his genitals. She said she rang the hospital a few times and they told her to take [X] to hospital. The mother again denied expressing concerns about sexual abuse to Dr E and emphatically denied making any complaints to SOCIT. The mother became defensive when cross-examined about Dr E’s report. The mother said she did not make any requests to SOCIT and did not initiate it. She says the SOCIT team told her that Mr L made allegations. The mother denied contacting the police and said that she been contacted by them. She also denied giving them a USB stick saying that she has never had one and does not have anything to give them. She denies still being concerned about [X] being sexually abused at the time of Dr E’s report. She says she did mention that [X] has blood on his bottom and was probably uncomfortable and constipated. The mother also said that she told Dr E that [X] did tell her things that concerned her and that [X] is clingy with her and wants to come home but things have gotten better.
When cross-examined about the February 2018 interview with SOCIT, the mother claims that she was not in the room when [X] was examined and it was put to her that [X] said that he was scared of his father and could not remember why his mother told him that and he forgot and that he had a big secret. The mother said she did not tell him that and that she did not put those words in [X]’s mouth.
When it was put to the mother that the police thought she was making it up for family law purposes, the mother denied this and said she would not be a very good parent of a child if she did that.
The mother then claimed that she was mistaken in her affidavit when she referred to [X] displaying hyper sexuality in recent times and considered that her affidavit should have said 2015.
I prefer Dr E’s evidence about this. The mother’s evidence was very inconsistent in this and other areas.
Dr E recorded that it was difficult to obtain a psychiatric history from the mother. The mother said that she had been on Modavgil for many years. It has helped her cope with her anxiety. She said she had been on Zyprexa for 20 years at a very high dose. Dr E challenged the mother about this, suggesting that such a dose suggests that the mother has a serious psychiatric condition. She said it was just for depression. She then said the dose has been reduced and further said she has not taken it for a while and does not need it. She said she is on and off and her GP knows about it. The mother said she had medical reports and there was a recent one which she forgot to bring to the assessment. She did not produce any reports at the hearing.
Dr E opines that the high levels of Zyprexa the mother was prescribed suggests that at some point the mother was diagnosed with severe psychiatric conditions. He notes that there have been suggestions she suffered from schizophrenia which the mother denied.
The mother told Dr E that she is anxious about [X]. She says she writes down what he says and said “they’re horrific things. He needs to be safe, what can I say?”
In describing his mental health examination of the mother, Dr E said the mother’s affect was preoccupied and tense. She had a limited ability to manage the interview and had trouble giving a cogent history. The mother’s account was confused. She provided conflicting answers. This is consistent with my impression of her when she was cross-examined, even acknowledging the stress of the court proceedings.
Dr E said that the mother’s account of her psychiatric history was not convincing. The mother lacked insight. I think that remains the case. The mother tried to give answers in cross-examination which she thought would assist her case.
Dr E expressed significant concerns about the mother’s mental health. She appeared highly dependent on [X] for emotional support and was isolated. He was also concerned that the mother continued to make allegations of [X] being abused by his father whilst describing the father as a loving father and then saying that [X] was afraid of his father. The mother was scattered and erratic in her presentation and he expressed ‘significant reservations’ about her ability to parent [X] appropriately and support [X]’s relationship with his father. He did not have those concerns with respect to the father.
Dr E found that the mother “has a likely Chronic Psychiatric Illness of Psychotic Proportions.” The mother’s Counsel cross-examined Dr E about this and his use of the word ‘likely’. He said this was because the mother gave a history of being treated for ADD and depression but her history went back a significant period of being managed with high doses of Zyprexa, which is a powerful anti-psychotic drug and this suggests that she has been treated for a psychotic illness and the dose she remains on is ether a dose for psychosis or a maintenance dose (I note the mother gave Dr E conflicting information about her dosage). It suggests a psychotic illness such as schizophrenia or perhaps bipolar disorder. The mother was not able to provide him with notes or a history to confirm it.
He agreed that ‘psychotic proportions’ is a clinical term. Dr E believes that the mother was likely diagnosed with a schizoid psychiatric condition with psychotic elements. The large doses she was on historically suggests there were acute phases and she is not on what is considered to be a maintenance dose. He said it would not necessarily be in her medical notes, depending on the history she gave. He said that the mother was very clear about the dose she was on currently. He queried her as to whether she was wrong about the higher dose. Dr E said the mother acknowledged being on that medication for a very long time. It may well be that it was managed by her GP for a period. He said it was very hard to get a history from her.
Dr E acknowledged that the medication can be prescribed as a mood stabiliser in the acute stage of an illness but it would be unusual to be maintained on that medication as a mood stabiliser. Whilst it could be possible, the fact that it is such a powerful medication that is usually prescribed for a severe psychiatric illness suggests that the person treating her wanted to control those symptoms by keeping the mother on a maintenance dose. He said it was typical for a patient to be treated by a GP, particularly in rural areas. Dr E also said that even 10 milligrams is a significant dose.
Dr E agreed with the mother’s Counsel that a patient lacking insight into these conditions can be common and it is common for doctors to have to work with patients who do not believe they need to take the medication. He said sometimes a patient can gain insight through exposure and discussion and sometimes it does not happen.
The mother’s Counsel asked Dr E if the dosage of Zyprexa she was on could have affected his capacity to assess her symptoms. He disagreed with that proposition as the fact that she had been on this medication for a long time is a signifier of a serious psychiatric illness at some point in time and the fact that she is still on the medication suggests that she requires ongoing treatment to avoid her relapsing. He went on to say that whilst he did not see florid symptoms in the mother, it suggests that there is a core psychotic illness that needs to be managed with medication and it may explain some of the mother’s unusual behaviour and consistency. He explained that when he referred to the mother’s reality testing being disturbed, it means that the mother could misinterpret through a distorted prism, for example making allegations that the father is abusing [X]. Dr E said that Zyprexa has no role in the treatment of ADD or anxiety. He also expressed concerns about Modavgil which is a stimulant and said it is not a good idea to be on that medication when a person has a chronic psychotic illness. He explained that psychotic means that a person’s reality testing is disturbed so that person often interprets the world through a paranoid prison with delusions about people talking about them and receiving messages during an acute episode.
He said that the mother’s claims about lost prescriptions and so on is broadly non-compliant with taking medication.
When asked about a timeframe for effective treatment, he said that a proper review with accurate diagnosis and compliance with treatment could expect to see significant improvement within 6 to 8 weeks. It is important to consider that sometimes the person who has had a serious psychiatric illness is burnt out and despite receiving treatment their level of function remains low. Whether or not that is the case it is helpful to have a medical history.
Dr E was not shaken in his opinions under cross-examination, I place significant weight on his evidence.
Closing submissions
At the end of the trial the parties agreed on interim consent orders which provide for the following:
1. All previous orders be discharged.
2. The child live with the father.
3. The child spend time with the mother as follows:
a. On one Sunday each calendar month in Melbourne from 11am until 5pm commencing on 28 October 2018;
b. On one Sunday each calendar month in Town A from 11am until 5pm commencing on 11 November 2018;
c. For three Wednesdays each month from the conclusion of school or 3:30pm until 7:30pm;
d. For one Wednesday each month from 4:30pm until 8pm to be supervised by the paternal grandmother;
e. By phone on each Tuesday and Thursday between 6:30 and 7pm and at any time the child wishes to do so. Such phone call to be monitored by the father; and
f. At other times as agreed in writing.
4. All time the mother spends with [X] be supervised by Mr D or other supervisor as agreed between the parties save that the paternal grandmother will supervise an after school occasion once per month as agreed in writing between the mother and the paternal grandmother with the mother to confirm her attendance 24 hours prior.
5. The Independent Children’s Lawyer meet with the child for the purposes of explaining these orders to the child and the father do all things to facilitate such meeting.
6. The mother forthwith attend upon a psychiatrist for assessment, diagnosis and treatment.
7. The mother provide the psychiatric assessment of Dr E dated 17 August 2018 and the family report of Ms F dated 28 September 2018 to whoever she engages to provide her with treatment.
8. The mother provide an irrevocable authority to her treating psychiatrist that authorises him or her to notify the father if the mother fails to engage or follow the treatment regime.
9. The parties do all things to engage with a family therapy practitioner and follow their reasonable directions in relation to attendance at appointments.
10. The parties be authorised to provide a copy of these orders to the School 1 Primary school.
11. The parties be restrained from:
a. Discussing these proceedings or the material filed in these proceedings; and
b. Denigrating the other party or their family members,
12. In the presence sight or hearing of the child.
The ICL proposes that those orders be made on a final basis with the alternate weekends and time on Wednesdays to continue during the school holidays and with the mother to have twice weekly phone calls with [X] with the father to monitor them. The ICL’s Counsel submitted that the maternal grandfather showed he clearly learnt from listening to the expert evidence and in those circumstances it is appropriate that he continue to supervise mother’s time. I agree with that assessment.
The ICL’s Counsel also informed the Court that Dr E has provided the ICL with three names of appropriate medical treaters for the mother. The ICL’s Counsel submitted that the father’s evidence was credible, whilst somewhat limited in his insight, but that overall he showed a strong commitment to [X]. Again, I agree with that assessment. He submitted that the mother’s evidence was difficult to rely on as she changed her story and the questions that were asked appeared to have very poor understanding of her own mental health issues and what the diagnosis may actually be. If [X] is to spend unsupervised time with his mother he would be at risk.
The father’s Counsel submitted that the mother has not demonstrated a capacity to parent [X], she was unable to get [X] to school and when he first came into the father’s care he could not last for the entire school week. In addition, there was a lengthy period where [X] did not see his father at all. She did not agree with the assessment of the maternal grandfather and submitted that he will not be able supervise indefinitely.
The mother’s Counsel expressed concern about how the father presented, his disability, and consequently his capacity. My assessment of both parents is that at times they have been avoidant with regards to their mental health and capabilities, and the issues of conflict between them including spend with arrangements for [X]. The criticism of the father with respect to his lack of disclosure with respect to his PTSD symptoms is warranted. Nonetheless, I am satisfied that the father has benefited from specialist pain management treatment and is no longer engaging in smoking cannabis. Neither Dr E nor Ms F had concerns about the father.
Counsel for the mother submits that it is premature to make final orders and she seeks interim orders be made so she can address her mental health condition. She submitted that the difficulty in making final orders is that no one can agree on what conditions the mother would have to reach for her time to be increased and become unsupervised and there is no provision for the mother’s time to increase or for [X] to return to her care. She referred to Dr E’s evidence to there being a significant improvement in eight weeks of treatment. I am not as optimistic as Dr E with respect to there being a major turnaround to the mother’s mental health. Dr E’s reference to an eight week period assumed that the mother would engage properly in treatment and that the medication would be effective. The mother does not have history of engaging effectively with her psychiatrist or taking medication consistently and appropriately. This is evidenced by her own evidence with respect to her interactions with psychiatrists and the history of her frequently losing scripts or claiming that the medication was stolen and seeking early replacements. It is certainly hoped that the mother is able to engage with the psychiatrist who she has trust in and address the mental health such that the risks to [X] having unsupervised time with his mother are reduced to an acceptable level. In no matter is it possible to ever say there is no risk.
I accept the submission that there is not a timeframe proposed with increasing the mother’s time and in my view, it would be inappropriate to try to devise a timeframe as there are too many unknowns. That would, in effect, have a medical practitioner making a decision that should be made by the Court. However, I am also not of the view that it would be in [X]’s best interests to make interim orders. The mother has had the opportunity to engage with mental health practitioners and address of the very serious concerns about her parenting capacity. She has been legally represented throughout and was present in court when the Court took the unusual measure of switching living arrangements on an interim basis and that indicates the level of concern that was held by the Court. The Court cannot be confident that the mother will be able to address them within a defined timeframe without the proceedings on foot.
If the mother seeks to a change to these orders, she will need to engage with a psychiatrist. She has at times had difficulties with the psychiatrists she has seen and she will need to find a psychiatrist with whom she has a rapport. It is impossible to give a timeframe and it is simply not known whether or not she will effectively engage in and respond to treatment. Hopefully she will be able to. She will have her father’s support who now has a better understanding of the issues.
If the mother is able to address her mental health issues, she will be at liberty to bring further proceedings to the court to review the spend time with arrangements. Any such an application should come before me.
It may well be that the parties will be able to agree on changes to the arrangements when the mother is able to provide evidence to the father showing that she is no longer a risk to [X].
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
Both parents seek equal shared parental responsibility although both acknowledge that they have not been able to communicate well. The orders that the father seek with respect to parental responsibility are in fact one for sole parental responsibility but with the father being obliged to consult with the mother but with him having the final say if they are not able to reach agreement.
I am concerned that if the parties were to have equal shared parental responsibility they will not be able to communicate effectively and make decisions together for [X]’s benefit. Although, I think they would attempt to, particularly when the mother is well, I still remain concerned. I am satisfied that it is not in [X]’s best interests for the parents to exercise equal shared parental responsibility. I am satisfied that the father should exercise sole parental responsibility but should consult with the mother and give her the opportunity to participate in making major decisions for [X]’s welfare. If the parties are not able to agree or if the mother does not respond the father should make the final decision.
Given this, it is not necessary to consider whether or not the parties should have equal time or substantial and significant time with [X]. The geographical distance between the parties home makes equal time impractical. Neither party seeks such an order.
The mother wants [X] to return to her primary care. At the time of the trial the mother’s position was that [X] should remain in his father’s care and see out the school year at his current school before returning to her care.
The main issues in this case are the mother’s capacity to parent and the mother’s capacity to facilitate [X]’s relationship with his father. The mother raised similar concerns about the father.
I am satisfied that it is in [X]’s best interests that he remain living with his father and spend supervised time with his mother. I have no concerns about the father’s capacity to provide for [X]’s emotional, intellectual and physical needs. [X] is thriving at his new school and in his father’s care his school attendance and progress academically and socially have greatly improved. The father acknowledges that [X] misses his mother. The father would be assisted by obtaining counselling assistance for himself and [X] to address explaining to [X] the change in living arrangements in a child focused way that [X] can understand and help [X] to address his sadness and upset about which he will inevitably feel. I have no doubt that [X] will miss living with his mother and being in her care as well as missing his home and community there. It would certainly be beneficial if these issues are addressed and for [X] to be able to spend time in Town B with his mother and maternal family.
The evidence establishes that the mother does not have parenting capacity to provide for [X]’s intellectual, emotional and physical needs. I do not discount the fact that she was [X]’s primary carer up until earlier this year and that she dearly loves [X] and would not intentionally cause him harm. However, it is clear that she did not prioritise [X]’s education and was not able to put strategies in place to deal with his anxieties about going to school. The mother also subjected [X] to physical examinations because of her belief that the father was sexually abusive even though there was no evidence or allegations of the father. As a result, I have real concerns about the mother’s ability to facilitate [X]’s relationship with his father. Whilst she understands that relationship is important, I am not convinced that she really understands why and appreciates the impact on [X] of stopping that relationship. The father has facilitated the mother’s time with [X] and it was appropriate to raise concerns in July 2018 that the grandfather was not supervising the time properly and it is clear that that was the case. It is clear that the paternal grandfather did not understand that he was required to not only being present at all times but being within ear shot and listening to conversations. Any criticism of the father in this regard is unwarranted.
To their credit, the parties agree interim orders which enable the mother to spend time with as her brother’s home and also to have time during couple of hours. That time is supervised by grandfather. I am satisfied that it is in [X]’s best interests to continue the interim arrangements and to make these as final orders. I will provide that the orders continue during school holidays with the mother’s time on the Wednesdays to be extended for a full day. I am satisfied that for the reasons I have given these orders are in [X]’s best interests.
If the parties are unable to agree on increased time, the mother will be able to bring a future application to the court seeking unsupervised time upon filing evidence of her treating psychiatrist outlining her treatment and medical prognosis, and after attending mediation with the father.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 20 December 2018
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Standing
-
Expert Evidence
-
Res Judicata
0