Lethbridge and Taylor - [2020] FamCAFC 129

FAMILY COURT OF AUSTRALIA

LETHBRIDGE & TAYLOR

[2020] FamCAFC 129

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim orders requiring her to undergo a psychiatric assessment and for the preparation of a family report and not ordering the child to be placed in her care – Where this matter has a long history with final orders made in 2014 – Where the mother’s unsupervised time provided for in the 2014 orders was subject to her ongoing psychiatric treatment for her diagnosed disorder – Where the child did not spend any time with the mother for about five years following those orders – Where the mother was successful in reopening the proceedings in 2019 – Where orders made in 2019 provided for two supervised visits between the mother and child – Where, as at the first of those visits, the mother had not seen the child for five years – Where the contact centre notes from those visits were properly tendered as evidence before the primary judge – Where those notes evidence the child’s strong resistance to seeing or spending time with the mother – Where those notes highlight potential difficulties with the mother’s mental health – Where the primary judge suspended orders providing for the mother’s supervised time with the child – Where the primary judge required the mother undergo a psychiatric evaluation to assess her mental health – Where the mother alleges procedural unfairness, bias and a failure to consider the entirety of the evidence – Where such challenges are without merit – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) ss 60CC, 60CD, 69ZX(3), 93A(2), 94AAA(3)
Federal Circuit Court of Australia Act 1999 (Cth) s 39

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cimorelli & Wenlack [2020] FamCAFC 58
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lethbridge & Taylor [2014] FCCA 2669
Lethbridge & Taylor [2019] FamCAFC 34
Lethbridge & Taylor [2020] FCCA 75
Michael Wilson & Partners Ltd v Nicholls (2011) 224 CLR 427; [2011] HCA 48
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Ms Lethbridge

RESPONDENT:

Mr Taylor

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

4768

2012

APPEAL NUMBER:

NOA

112

2019

DATE DELIVERED:

29 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

21 May 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2019

LOWER COURT MNC:

[2019] FCCA 3761

REPRESENTATION

THE APPELLANT:

Self-represented via telephone

SOLICITOR FOR THE RESPONDENT:

Mr Patterson via telephone, Aboriginal & Torres Strait Islander Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Murphy via telephone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

Orders

The appeal from the orders made in the Federal Circuit Court of Australia on 21 November 2019 (as amended on 11 December 2019) is dismissed.
There be no order as to costs of the appeal.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 112 of 2019
File Number: BRC 4768 of 2012

Ms Lethbridge

Appellant

And

Mr Taylor

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 21 November 2019, the primary judge in the Federal Circuit Court of Australia (“the FCC”) made interim orders (as amended on 11 December 2019) in parenting proceedings[1] between Ms Lethbridge (“the mother”), Mr Taylor (“the father”) and the Independent Children’s Lawyer (“the ICL”) concerning the child X, born in 2007, who is now about to turn 13 years of age.
[1]Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Within the constraints of an interim hearing where evidence cannot be tested by cross-examination, with the consequence that disputed issues of fact cannot be the subject of definitive findings,[2] the following centrally important features provided the context in which the subject interim orders were to be determined:
a)Following a five day trial of parenting proceedings in 2014, Judge Lapthorn made final parenting orders on 20 November 2014 whereby X was to live with the father, who was to have sole parental responsibility. Underpinning the conditional orders made for the child to spend time with the mother was the requirement (Order 11) that the mother commence and maintain psychiatric treatment directed to relapse prevention of the effects of the mother’s Disorder T;
b)From, or soon after the 20 November 2014 orders, when the child was only seven years of age, the child did not spend any time with her mother for some five years until August 2019 pursuant to orders made by Judge Tonkin on 16 July 2019 for the child to have two visits with the mother supervised at the Town R Children’s Contact Centre. Those visits took place on 11 August 2019 and 25 August 2019. As at the first visit on 11 August 2019 it had been some five years since the child had spent any time with the mother;
c)Notes prepared by staff of the Town R Children’s Contact Centre summarising what occurred in the visits on 11 and 25 August 2019 were in evidence. In summary, those notes record significant difficulties concerning the interaction between the child and the mother including that the child refused to speak to, or interact with, the mother and that the child did not want to see her mother, and wished to terminate the visit on each occasion. Both visits were unsuccessful in terms of the child having any positive interaction with her mother and were terminated early, consistent with the child’s repeated requests during the visits.
[2] See, for example, Eaby & Speelman (2015) FLC 93-654 at [18]–[19]; Salah & Salah (2016) FLC 93-713 at [35]–[45]; Cimorelli & Wenlack [2020] FamCAFC 58 at [80]; Goode & Goode (2006) FLC 93-286 at [68].
The interim orders made by the primary judge on 21 November 2019 (as amended on 11 December 2019) provide for, in summary:
a)The mother to attend upon an independent expert psychiatrist for the purpose of a psychiatric assessment and report;
b)The facilitation of interviews for an independent expert assessment for a Family Report to be prepared;
c)That Orders 15, 19 and 20 made by Judge Lapthorn on 20 November 2014, making provision for the child to spend time with the mother (subject to the condition in Order 11 referred to), be suspended with the balance of those orders to remain in force;
d)For the parenting proceedings to be transferred to the Family Court of Australia.
By her Amended Notice of Appeal filed on 20 March 2020, the mother appeals from all of the interim orders made by the primary judge. The father and the ICL oppose the appeal.[3]
[3] Pursuant to a direction made under s 94AAA(3) of the Act the jurisdiction of the Family Court of Australia in relation to this appeal is to be exercised by a single judge.

Brief history of the parents’ relationship

The mother was born in 1970 and is 50 years old. The father was born in 1971 and is 49 years old. The parties commenced cohabitation in 2006 and, as already noted, their only child X was born in 2007 and will soon turn 13 years of age. X has been diagnosed with Autism Spectrum Disorder.
When the parents separated in 2010, when X was only three years of age, she lived primarily with her mother until October 2013 when Judge Coker made a recovery order and orders for X to live with her father and spend supervised time with her mother.
For about eight months prior to the determination of final orders by Judge Lapthorn in November 2014 the child had been having supervised time with the mother.

The findings and orders of Judge Lapthorn

As already noted, final parenting orders were made by Judge Lapthorn on 20 November 2014 after a five day trial of parenting proceedings.
It is abundantly clear that the mother has never accepted the correctness of the 20 November 2014 orders, nor the central findings that underpin those orders. However, the mother’s appeal from those orders was abandoned and never pursued. Those findings and orders must therefore be approached on the basis that they are undisturbed on appeal. Inevitably, the findings and orders of Judge Lapthorn following a five day trial, undisturbed on appeal, assumed prominence in the parenting applications of the mother which followed, including in the interim proceedings the subject of this appeal. The primary judge made it clear at [7] of her Honour’s reasons that her Honour had considered Judge Lapthorn’s extensive reasons (Lethbridge & Taylor [2014] FCCA 2669) for the orders that his Honour made.
In allowing the mother’s appeal from a dismissal by Judge Spelleken of her application to reopen parenting proceedings, Murphy J provided a helpful summary of Judge Lapthorn’s central findings at [8]–[12] of his Honour’s reasons delivered on 28 February 2019 (Lethbridge & Taylor [2019] FamCAFC 34). I respectfully adopt that summary which is as follows:
8.In his reasons for final orders, Judge Lapthorn “formed the impression” that the child had been coached by the mother in relation to allegations made by her that [X] had been sexually abused at the hands of the father. His Honour made a specific finding that abuse had not occurred and that there was no risk of it occurring posed by the father.
9.His Honour’s ultimate findings and orders were consistent with those sought by the Independent Children’s Lawyer (“ICL”) at the conclusion of the trial. They reflect myriad other concerns raised during the course of the proceedings. As examples, his Honour made findings about the following relevant matters:
•Concerns as to the mother’s mental health and the treatment/management of her [Disorder T] (referred to in more detail below);
•The mother’s “almost ambivalent attachment with” [X], although the child presented as “quite relaxed and settled when observed with her mother and there was appropriate engagement and interaction”;
•His Honour had “no confidence” that the mother would foster a relationship with the father, or [X’s] Aboriginal heritage;
•There was no risk of exposure to family or sexual violence while in the father’s care;
•There was a risk of psychological harm to [X] if the mother persisted with her allegations of sexual abuse by the father as his Honour considered likely;
•There were concerns as to the mother’s future accommodation arrangements, including that the mother “was considering living in a share house arrangement, hotel accommodation and even backpacker accommodation” while she looked for permanent accommodation;
•Records from the Department of Communities, Child Safety and Disability Services (“the Department”) showed that the mother had contacted the Department expressing concerns regarding her ability to care for [X];
•The mother gave evidence that she “advertised on the internet for a family to share the care of the child with her and having received an expression of interest from a man in Canberra”. Although the mother did not follow through with that enquiry, his Honour accepted the ICL’s submission that “the mother appeared to have little insight or understanding as to the danger this may pose to the child”;
•[X] had “improved academically and socially since her enrolment [at school] in 2012 and in particular since the child went into the father’s full time care”. [X] has been diagnosed as being within the Autism spectrum. The mother had designed an educative programme for [X] while she was living with her but by the time of trial was attending a mainstream school with assistance from a teacher’s aide.
10.Of particular relevance to this appeal are Judge Lapthorn’s findings with respect to concerns raised by [Ms W] (a family report writer) and [Dr D] (a psychiatrist) as to the mother’s management of her [Disorder T], and recommendations by them that the mother should continue supervised visits with the child until the mother obtains ongoing psychiatric therapy.
11.In relation to the opinions expressed by [Dr D], Judge Lapthorn said:
67.When [Dr D] conducted the updated assessment in May 2014 he noted the mother had discontinued her [O medication] treatment but was taking an antidepressant daily and occasionally [H medication]. He concluded that there was no evidence of mood disturbances in the mother but she appeared to have misunderstood or misinterpreted a lot of abstract communication between herself and others including the child. In his view she had been affected by a pathological suspicion of the intentions of others. He gave the following opinions:
Mental condition: As stated in my previous report, [Ms Lethbridge] suffers from [Disorder T], a condition that usually presents with a cyclic course of remissions and relapses when untreated. [Ms Lethbridge] has had a number of relapses in the past and the risk of future relapses is high without treatment with an effective mood stabiliser such as [O medication]. Currently she is not on any effective treatment to prevent a relapse.
She is in remission without any mood disturbances at present. However, I suspect that there is some impairment in her ability to understand and interpret communication from people close to her, including [X], and to act appropriately. This could be related to her untreated mental condition or in a pre-existing personality trait. This impairment may not be a significant issue for her if she is not under stress and if she is not going to have responsibility for the parenting care of [X].
Opinion in relation to parenting: [Ms Lethbridge] has a close attachment to [X] and remains very distressed about the separation. In my opinion, there is no significant risk to the safety or well-being of the child, if [Ms Lethbridge] continues to see [X] under the current supervised arrangement.
It is possible to consider longer periods of unsupervised contacts with the child in the future if [Ms Lethbridge] can show that she is actively treated and is regularly assessed by a psychiatrist. If this happens, [Ms Lethbridge] will also need explicit instructions on the conditions of her spending time with the child, so that she will not misinterpret them.
(As per original)
12.His Honour said that the mother did not agree with those opinions, and that she “was content with the management of her condition through the assistance of her general medical practitioner”. His Honour agreed with the opinion and evidence of [Dr D] who:
…was firmly of the view that [the mother] needed the assistance of a psychiatrist on at least a two monthly basis and to maintain the use of a mood stabiliser. He considered the mother lacked insight into the extent of her illness. He opined that she was at a very high risk of having a relapse, even though she considered herself to be fine.
(Footnotes omitted)
Murphy J determined that further evidence admitted on that appeal may, if accepted, provide sufficient evidence of a change in circumstances in respect of issues concerning the mother’s mental health, such as to potentially impact upon a determination as to whether further parenting proceedings ought proceed. His Honour remitted the mother’s application to reopen the parenting proceedings on that basis (at [45]–[50]). Notably, his Honour concluded his reasons for judgment with the following observations concerning Judge Lapthorn’s findings and orders and the mother’s approach to them:
51.Because the mother represents herself and because at least some of the submissions made by her at the hearing of the appeal indicate some fundamental misunderstandings about the existing orders and her position in respect of them, I consider I should refer to a number of additional matters.
52.The mother did not appeal the orders made by Judge Lapthorn. Despite this, she continues to challenge them in a number of different ways. Continuing to do so will not assist her. The essence of the mother’s application is, it seems, to change fundamentally the existing orders.
53.Yet, if she is able to produce evidence which is accepted by the Court that she has satisfied Order 11 of Judge Lapthorn’s orders, she becomes entitled pursuant to those orders to exercise the time with [X] for which they provide. But she is only entitled to that time if she can meet the requirements of Order 11.
54.Success on this appeal does not mean that the substantive parenting orders sought by the mother should be made or should have been made by her Honour. A rehearing of her application will have as its focus [X’s] best interests. A number of factors, unconnected with whether Judge Lapthorn did or did not reach the correct conclusion (as the mother sees it), will be relevant to that determination, not the least of which will be the views of a 12 year old.
(Emphasis in original)
In this appeal the mother remained fixated upon propositions centred upon the incorrectness, as the mother perceives it, of Judge Lapthorn’s findings and orders.
Judge Tonkin allowed the reopening of parenting proceedings on 16 July 2019. Her Honour, in her reasons delivered on 16 January 2020 for her 16 July 2019 orders (Lethbridge & Taylor [2020] FCCA 75]), made extensive reference to Murphy J’s reasons delivered in the appeal referred to. Her Honour concluded her own reasons for judgment with this:
32.I am satisfied that there is sufficient evidence before me on a preliminary basis of a change of circumstance in that for the period indicated by [Dr S] the mother’s mental health was stable. I am also satisfied that there are unresolved issues between the mother and child which need to be addressed. I intend to allow the mother’s application to re-open the matter.
33.Given the length of time the mother has not spent time with the child (about 5 years) nor communicated with her I am not satisfied that it is in the child’s best interests to make orders sought by the mother for the child’s immediate return to her care.
34.I am satisfied that it is in the child’s best interests on an interim basis that she spend time with the mother on two occasions at the [Town R] Contact Centre supervised. That order is reasonably practicable as both parties currently live in [Town R] though I note that the mother has only temporary accommodation.
35.Given the intractable nature of this dispute and the significant issues in this matter including issues surrounding the mother’s mental health and homelessness I intend to appoint an Independent Children’s Lawyer. I am satisfied that such an order is in the child’s best interests. I make orders accordingly.
As would appear to be obvious, the orders Judge Tonkin made for the child to spend two supervised visits with the mother were designed to, in part, explore the question of “unresolved issues between the mother and child” referred to by Judge Tonkin.

Despite Judge Tonkin expressing satisfaction that it is not in the child’s best interests to make orders sought by the mother for the child’s immediate return to her care (at [33]), a determination not challenged by any appeal, the mother pursued such an order before the primary judge in the subject proceedings.
On 21 November 2019, Judge Purdon-Sully conducted an interim hearing and made the orders earlier referred to which are the subject of this appeal.

Challenges on appeal

The mother is self-represented and has no relevant legal training or experience. Her stated grounds of appeal as contained in her Amended Notice of Appeal adopt a narrative and discursive form and in some respects, mainly because of a lack of particulars, tend to obscure, rather than illuminate, the precise error sought to be agitated on appeal. Further, the mother’s Outline of Argument diverges significantly from her grounds of appeal.
With due allowance for the feature that the mother is self-represented it is, in my judgment, legitimate not to strictly confine the mother to her stated grounds of appeal, but to also consider what appears to be an expansion of the challenges the mother seeks to advance as contained in her Outline of Argument. This is subject to the important qualification that much of the mother’s Outline of Argument is directed to alleged errors in the findings and orders of Judge Lapthorn in 2014 in an apparent attempt to agitate consequent error on the part of the primary judge to the extent that her Honour relied upon those findings and orders. For the reasons already stated, the primary judge was entitled to presume the correctness of Judge Lapthorn’s findings and orders as being in the child’s best interests and there is no error on the part of the primary judge in so relying upon them.
In her Summary of Argument for the appeal, counsel for the ICL, by reference to both the grounds of appeal in the mother’s Amended Notice of Appeal, and the content of the mother’s Outline of Argument, identifies each of the challenges advanced. As I am satisfied that counsel has properly and fully encapsulated the identifiable challenges the mother seeks to advance on appeal, I adopt as the challenges the mother advances on appeal, taken from paragraph 27 of counsel for the ICL’s Summary of Argument, the following:
…
a.The primary judge erred by making final orders without either considering all of the evidence or affording the mother an opportunity to respond (Ground 1, Ground 3, Ground 6, Outline of Argument);
b.The primary judge erred by making orders which did not provide for [X] to spend time with her mother;
c. The primary judge denied the mother procedural fairness by:
i.Failing to rule on the admissibility of the contact centre notes (Ground 2);
ii.Failing to rule on the admissibility of a report by the child’s psychologist [Ms M], or by permitting reliance upon that document (Outline of Argument paragraph 23, 57)
iii.Refusing the mother to adduce evidence of a recording she made of a visit at the contact centre (Ground 2, Outline of Argument paragraph 67);
iv.Failing to have regard to evidence adduced by the mother, namely reports relating to the mother’s mental health (Grounds 3, 6);
d.The primary judge was biased against the mother (Ground 3, Outline of Argument paragraph 84), including by:
i.Making an order that the mother attend upon a psychiatrist for the purpose of an independent assessment of her mental health (Outline of Argument paragraph 77)
ii.“falsely claiming the mother must engage in ongoing mental health treatment to have her child in her care” (Ground 3);
iii.“falsely claiming ... that the mother has ‘several’ other mental health concerns even though the mother attended court and is self-represented” (Ground 3);
iv.“stating that the mother is wreckless [sic] in her mental health care and ‘took herself off medication’ and ‘will not comply with doctors or treatment’” (Ground 3)'
v.Referring to the findings of Judge Lapthorn relating to the mother’s mental health (Outline of Argument, paragraphs 3, 7, 8, 15);
vi.Failing to refer to the father’s non-compliance with orders (Outline of Argument paragraph 17);
vii.Refusing the mother’s application/s and making “hostile orders” against the mother (Outline of Argument paragraph 79);
e.The primary judge erred in the manner in which she addressed the orders of Judge Tonkin (Ground 5, Outline of Argument paragraphs 76, 79, 80)
(As per the original)

Preliminary issues

The mother attempted to file an Application in an Appeal on 24 March 2020 so as to include in the material for the appeal a transcript of the hearing before the primary judge on 21 November 2019 and a transcript of an earlier hearing which took place before Judge Tonkin on 16 July 2019. The application was not accepted for filing by the Registry because the 21 November 2019 transcript is already part of the Appeal Record and the mother did not produce, with her application, the 16 July 2019 transcript.
As was explained to the mother at the outset of the hearing of the appeal, the orders made by Judge Tonkin on 16 July 2019 and her Honour’s reasons for judgment for those orders were already before the Court as part of the appeal material. There is no apparent relevance of the transcript of the hearing on 16 July 2019 given the availability of the orders and reasons. In any event, that transcript was not available to the Court unless it were obtained by a party. In those circumstances, the mother did not contend at the hearing of the appeal that the transcript of the 16 July 2019 hearing before Judge Tonkin was in fact necessary.
Another matter is that attached to the mother’s List of Authorities filed in the appeal are references and hyperlinks to an array of articles and/or social science literature. There is no suggestion that any of this material was in evidence before the primary judge and there is no legitimate basis to receive it as further evidence as to any question of fact on appeal[4] primarily because it has no apparent relevance to the questions on this appeal and nor is it in admissible form.
[4]Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”); CDJ v VAJ (1998) 197 CLR 172.

Procedural fairness and bias challenges

Counsel for the ICL raises in her Summary of Argument, by reference to the High Court decision in Vakauta v Kelly (“Vakauta”)[5] that a party to litigation who does not raise any question of bias during a hearing may be taken to have waived any right subsequently to object, with the party thereby being precluded from raising the objection for the first time on appeal. However, in the relevant passage in their joint judgment in Vakauta at page 572, Brennan, Deane & Gaudron JJ specifically refer to “… a party who has legal representation ...” It is far from certain, in my judgment, that the same principles of waiver articulated by their Honours apply to a party who, like the mother here, was self-represented in the hearing before the primary judge and who thus did not have the benefit of contemporaneous legal advice when the ground for objection first arises.
[5](1989) 167 CLR 568.
I therefore do not approach the mother’s bias challenges on the basis that the mother has waived her right to raise them on appeal. However, for the reasons which follow, nothing to which the mother directs attention on appeal is capable of establishing that the primary judge was actually biased, in the form of prejudgment. As to apprehended bias, the mother does not identify what is said which might have led the judge to decide the case on other than its legal or factual merits and, having established that matter, articulate a logical connection between that matter and the feared deviation from the course of deciding the case on its merits.[6]
[6] Michael Wilson & Partners Ltd v Nicholls (2011) 224 CLR 427; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488.
Much of the mother’s argument in support of her challenges about procedural fairness and bias is directed to her contention that Judge Lapthorn’s findings and orders are wrong. The mother contends, in essence, that because Judge Lapthorn was wrong, in turn the primary judge was wrong to place emphasis on Judge Lapthorn’s determinations and that by doing so the primary judge demonstrated bias, or that conduct gave rise to a reasonable apprehension of bias. The mother’s contention of bias rests centrally upon acceptance of her argument that there is no need for her to be psychiatrically assessed.
Clearly, it was entirely legitimate for the primary judge to have regard to the findings and conclusions reached by Judge Lapthorn after a five day parenting trial. Section 69ZX(3) of the Act specifically provides that in child-related proceedings the Court may adopt such findings. Undoubtedly, taken from Murphy J’s summary of Judge Lapthorn’s judgment outlined earlier, the mother’s mental health was a significant issue in those proceedings. Likewise, as Judge Tonkin recorded at [35] of her Honour’s reasons earlier referred to, in allowing the reopening of parenting proceedings, the significant issues in the matter identified by Judge Tonkin included “issues surrounding the mother’s mental health …”
In the subject hearing the primary judge had no current evidence before her to illuminate the current position with respect to the mother’s mental health. Whilst the mother argues that the notes and correspondence from Dr S in 2017 constitutes sufficient evidence of the stability of her mental health, by its very nature it had been identified that the effects of the mother’s Disorder T could recur. That was a particular facet of the mother’s mental health identified in the expert evidence before Judge Lapthorn earlier referred to.
Whilst the mother had correspondence from Dr S indicating that this psychiatrist was content with the stability of the mother’s mental health in 2016 and/or 2017, it was legitimate for the primary judge to seek to ascertain a current medical assessment of the mother’s mental health. This was so in circumstances where the mother herself acknowledged her mental health issues over the course of her lifetime (Transcript 21 November 2019, p.20 lines 34–35; p.22 lines 21–22 and lines 38–39).
The mother’s claims to the effect that the primary judge made findings about the mother having “several other mental health concerns” and that the mother “took herself off medication” cannot be sustained. As the reasons of the primary judge reflect, the primary judge did not make any such findings.
Given the significance which the mother’s diagnosed Disorder T had in the proceedings before Judge Lapthorn, a condition which the expert in those proceedings identified as one “that usually presents with a cyclic course of remissions and relapses when untreated”, and when that expert had also identified that the mother “has had a number of relapses in the past and the risk of future relapses is high without treatment …” it was entirely legitimate for the primary judge to order an independent psychiatric assessment of the mother to determine whether the mother currently had, as she argued, achieved remission of longstanding and stability relevant to her parenting capacity.
To the extent that the mother contends that bias on the part of the primary judge is demonstrated by the feature that an order was made for the mother to attend an independent psychiatric assessment when no such order was made with respect to the father, there is no substance in the contention. Her Honour made specific reference at [14] and [15] of the reasons to the fact that there was no current evidence of the state of the mother’s mental health and that in the proceedings before Judge Lapthorn the mother’s mental health was an issue. Moreover, in the course of her submissions to the primary judge the mother referred to having “lived experience with mental health since I was 15 years old …”;[7] acknowledged that she has “a mental health condition”[8] and that she has “a diagnosis of [Disorder T], and I have had major depression in the past”.[9] Given the lack of any proper evidentiary foundation identified for the father to be psychiatrically assessed, the primary judge was correct to observe at [16] of the reasons that there was no evidence to support an order for psychiatric assessment of the father. Thus the fact that the primary judge did not make an order for psychiatric assessment of the father when she did so with respect to the mother, does not reflect either actual bias or apprehended bias on the part of the primary judge.
[7]Transcript 21 November 2019, p.20 line 35.
[8]Transcript 21 November 2019, p.22 line 20.
[9]Transcript 21 November 2019, p.22 line 40.
In support of her claims of bias on the part of the primary judge, the mother asserts that the primary judge demonstrated bias by:
a)“falsely claiming the mother must engage in ongoing mental health tratment [sic] to have her child in her care”;
b)
“falsely claiming … that the [m]other [sic] has ‘several’ other mental health concerns even though the mother attended court and is

self-represented”;
c)“stating that the mother is wreckless [sic] in her mental health care and ‘took herself off medication’ and ‘will not comply with doctors or treatment’”.
No such findings appear in the reasons for judgment of the primary judge nor does review of the transcript of the hearing reveal that the primary judge made any such comments during the course of the hearing.
As for the complaints of procedural unfairness, the mother complains that it was procedurally unfair for the primary judge to receive into evidence the notes produced by the Town R Children’s Contact Centre in relation to the supervised visits ordered by Judge Tonkin, which took place on 11 and 25 August 2019 when the mother had objected to these notes being tendered into evidence on the basis that “[t]hey provided false information”.[10] However, those notes were clearly relevant to an issue in dispute, namely the nature of the relationship between the child and her mother in circumstances where the child had not spent time with her mother for a period of some five years prior to the occasions of those supervised visits. As the primary judge correctly observed at [13] of the reasons:
… The notes have significant probative value at this interim stage precisely because the evidence can not be tested and because they are notes made … by an independent body which offers professional contact services and are relevant to a significant issue in dispute…
(As per the original)
[10]Transcript 21 November 2019, p.35 lines 1–17.
The mother contends that the notes ought not to have been relied upon as she had a transcript which she asserted was taken from an audio recording to demonstrate that the notes were not accurate. However, the mother did not produce the audio recording but attempted to rely upon her own transcript of that recording. That was not accepted by the primary judge given the availability of the primary evidence, that is, the audio recording itself, which the mother did not adduce into evidence.
The mother complains that the primary judge erred in refusing to allow the mother to rely on the transcript referred to above which she asserted she had prepared from the audio recording. The primary judge said this:
12.The difficulty for the mother in relation to her transcript is that she has not yet provided the actual audio recording made by her during a visit at the contact centre. Those visits are ordered by Judge Tonkin pursuant to her Order in July of 2019. Putting to one side the mother’s acknowledgement that it was a likely breach of the guidelines of the [Town R] Contact Centre that she make those recordings without anybody knowing, she asserted in submissions that in doing so, she “anticipated unfair play” on the part of the centre staff. The recording, as I indicated, has not been made available to the parties to enable an assessment in relation to the accuracy of the transcription which appears in the mothers’ affidavit filed on 23 September 2019.
(As per the original)
It was entirely open for the primary judge to accept the independently produced notes from the Town R Children’s Contact Centre as to what occurred on the visits rather than a transcript prepared by the mother herself when the audio recording of what occurred was not produced by the mother to ascertain the veracity of her transcript.
The further challenge of the mother as to procedural fairness is the assertion that the primary judge failed to make any ruling on the mother’s objection to a report of Ms M, the child’s treating psychologist being received into evidence. Whilst the primary judge did not engage with the mother’s contention to have this report “stricken from the record”[11] there existed no proper basis for the primary judge doing so. In any event, as the primary judge herself noted, none of the parties sought to rely upon the report of Ms M such that no occasion for objection even arose.[12]
[11]Transcript 21 November 2019, p.40 lines 32–34.
[12]Transcript 21 November 2019, p.40 lines 29–30.
The mother further complains that the primary judge failed to have regard to evidence produced by her in relation to her mental health referable to correspondence from Dr S. However, putting that evidence at its highest it may establish that the mother attended for psychiatric therapy in 2016/2017 and then achieved some level of stability in terms of her mental health. However, what was important was current evidence concerning the mother’s mental health. The need for current evidence is reflected in the following paragraphs of the primary judge’s reasons:
14.Secondly, an updated psychiatric assessment of the mother is necessary and to be conducted by an independent psychiatrist with relevant material. There is no current evidence of the state of the mother’s mental health, a significant issue at the trial before Judge Lapthorn, three psychiatric reports having been undertaken at that time prior to that trial, the most recent by the Court appointed psychiatrist a few months before the 2014 orders were made suggesting that there were issues to do with the mother, that she had ceased her [O medication] and that she was at risk of relapse, amongst other concerns, and the potential impacts that that presented for [X].
…
23.The notes of the centre, again if accurate, raise a further concern about the mother which further supports the need for an updated psychiatric report. That is, in his third report filed on 22 May 2014, some months before the orders were made, and before the trial (the last two days of the trial were 2 and 3 July 2014), the Court appointed psychiatrist in the context of the mother’s diagnosed [Disorder T] noted that she had had a number of relapses without treatment, without an effective mood stabiliser, such as [O medication], and that the mother was not on any effective treatment at the time to prevent a relapse having ceased taking her [O medication].
24.He went on to opine some impairment that he observed in her ability to understand and interpret communication from people close to her, including [X], and to act appropriately.
25.He opined that this could be related to her untreated mental condition or a pre-existing personality trait, an impairment that may not be significant if the mother is not under stress.
26.In light of the contact centre notes, albeit disputed by the mother, these are matters directly relevant to the issue of the mother’s time with [X] and how that is to be advanced and reinforce the importance of obtaining a psychiatric assessment in the form of an updated report.

Having reviewed the transcript of the interim hearing on 21 November 2019, I am comfortably satisfied that the primary judge afforded the mother procedural fairness and that nothing said or done by the primary judge in the hearing, or contained within her Honour’s orders or reasons for judgment, provides any support whatsoever to the mother’s claims that she was denied procedural fairness or that the primary judge demonstrated actual or apprehended bias.
There is no merit in the mother’s challenges as to bias and procedural fairness.

Orders not including provision for the child to spend time with the mother

The mother argues that the primary judge erred in considering the child’s best interests by stating that the orders sought for time with the mother were not in the child’s best interests.
The mother contended before the primary judge that the child is being alienated from her by the father and that regular unsupervised time between the mother and child is necessary to reunite them and build their relationship. To this end, there was the following exchange in the course of the hearing (Transcript 21 November 2019, p.15 lines 4–24):
[MS LETHBRIDGE]: Well, your Honour, with due respect, my understanding of child psychology, and psychology in general, is that [X] has been in an environment where she has been subject to sort of like a brainwashing experience.
HER HONOUR: Well, let’s assume that’s right. Let’s assume, just for argument’s sake, today, she has been brainwashed by the father.
[MS LETHBRIDGE]: Yes.
HER HONOUR: How does getting the Federal Police to go and collect her and force her to live with somebody that she clearly does not want to even spend time in a contact centre with, how does that deal with the alienation, because if you understand the psychology associated with that, you would probably appreciate that that might not be the best way of going about it.
[MS LETHBRIDGE]: Right. Well, there’s - - -
HER HONOUR: And so one way of dealing with this is to get a family report, to get a psychiatric assessment, because you say that the orders that were made by Judge Lapthorn in 2014 were really unfair and there was really no need for you to have to engage in, you know, the programs that he suggested that you - - -
Given X’s attitude to the mother as evidenced in the observational notes of the Town R Children’s Contact Centre concerning the two visits, and the mother’s contention that X’s demonstrated attitude is the product of active “alienation” by the father or his “brainwashing” of X, the order for the obtaining of a Family Report was the obvious means for the Court to obtain independent expert evidence to assess not only X’s views, but any underlying influences upon her expressed views. Prima facie, at X’s age significant consideration would have to be given to her expressed views in determining parenting orders in her best interests (s 60CC(3)(a)) and a Family Report is the obvious means by which the Court informs itself of a child’s views (s 60CD).
The primary judge’s reasons for rejecting the mother’s orders sought, on an interim basis, by reference to the child’s best interests are explained in this way:
19.Next, if I can come to the issue of time. I want to say two things at the outset. The Court acknowledges the challenges that present for the mother in self-acting. She came today very prepared and I notice she had quite a lot of documents in neat piles in front of her. However, today is not a trial. I would ask her to be patient with the process. These proceedings are about a young girl who is struggling on everyone’s case. Everyone seems to be concerned about her wellbeing. The Court is certainly concerned. She is a little girl who has been seeing a psychologist. Irrespective of the reasons for her reluctance to see her mother, she is resistant to spending time with her and forcing her to do so does not present to the Court as a child- focused option on the evidence before me today. It could well close the door forever to any meaningful relationship she may be able to forge with her mother.
20.Secondly, the Court further acknowledges the difficulty for the mother in not being able to spend any time with [X] and that [X’s] response to the mother at the Contact Centre was, no doubt, very difficult for the mother in the circumstances. The Court does not in any way doubt the mother’s love for [X] nor doubt that the mother wants the best for her. However, orders must be made in the child’s best interests and there is no persuasive evidence to suggest that forcing [X] at age 12 to spend time with her mother at a contact centre when she does not want to do so will make things better for [X] or suggest a likely reunification between the mother and [X].
21.Similarly, nor do the mother’s proposed orders for unsupervised time in any way, shape or form address [X’s] resistance. Nor would issuing a recovery order for [X] present a better option for her. Over and above that resistance, the mother’s behaviour at the contact centre, if accurately recorded by the contact centre staff, suggest that the mother may have a difficulty with her emotional regulation, it may suggest a lack of child focus and a difficulty following expected norms of behaviour, including compliance with agreed guidelines of the centre.
22.On 26 August 2019 the contact centre advised that they were unable to continue to provide services for this family. So in any event, over and above the issues that I have raised about continuing to force [X] to spend time with her mother at a contact centre, the [Town R] Contact Centre is not available to offer their services for the family.
23.The notes of the centre, again if accurate, raise a further concern about the mother which further supports the need for an updated psychiatric report. That is, in his third report filed on 22 May 2014, some months before the orders were made, and before the trial (the last two days of the trial were 2 and 3 July 2014), the Court appointed psychiatrist in the context of the mother’s diagnosed [disorder T] noted that she had had a number of relapses without treatment, without an effective mood stabiliser, such as [O medication], and that the mother was not on any effective treatment at the time to prevent a relapse having ceased taking her [O medication].
24.He went on to opine some impairment that he observed in her ability to understand and interpret communication from people close to her, including [X], and to act appropriately.
25.He opined that this could be related to her untreated mental condition or a pre-existing personality trait, an impairment that may not be significant if the mother is not under stress.
26.In light of the contact centre notes, albeit disputed by the mother, these are matters directly relevant to the issue of the mother’s time with [X] and how that is to be advanced and reinforce the importance of obtaining a psychiatric assessment in the form of an updated report.
…
29.The lacuna in the mother’s evidence with respect to her mental health is a hurdle that she has not mounted today, a difficulty for her because she does not view it as being relevant. However, it is a significant issue. I can not make it any plainer than that. The mere fact that someone, sadly, suffers from a mental health condition, including [Disorder T], does not suggest that they cannot parent a child or that there cannot be a relationship of value between that child and a parent. However, the mother would be well advised to address the issue head-on and not ignore it and it would be in her interests to ensure that current evidence in relation to her mental health is before the Court.
(As per the original)
Within the constraints of an interim hearing, and the consequent inability to make determinative findings of fact, there was no error in the primary judge relying upon the contents of the Town R Children’s Contact Centre notes. Faced with the mother’s competing contentions as to her current mental health being stable; and the mother’s contentions as to the influence of the father upon X’s expressed views, both of those things had to be the subject of independent expert assessment and the primary judge was not in error in making an order for the mother to be independently assessed psychiatrically nor in making an order for a Family Report to be obtained.
It is clear that the primary judge identified a psychiatric assessment of the mother as the necessary means for the Court to have independent evidence of the mother’s current position and degree of stability vis-a-vis her parenting capacity. No discretionary error is established by the primary judge’s refusal to order, on an interim basis, that X live with the mother, an obviously profound change for X to her circumstances of living with the father, and having no physical contact with the mother for the previous five years, apart from the unsuccessful supervised visits in August 2019.

Interpretation of Judge Tonkin’s orders

The mother contends that the primary judge incorrectly interpreted the 16 July 2019 orders as being the only orders for contact between the mother and child when, in fact, Judge Lapthorn’s 2014 orders are still operative and provide for supervised time.
Orders 8 and 9 of Judge Tonkin’s orders made on 16 July 2019 were in these terms:
8.The Independent Children’s Lawyer, upon their appointment, shall confer with each of the parents with respect to the following:
a.Organising two (2) visits between the child and the mother at the [Town R] Children’s Contact Centre;
b.Advising each parent with respect to the date and time the mother shall attend the [Town R] Children’s Contact Centre to spend time with the child;
c.Following the attendance of the child and the mother at the [Town R] Children’s Contact Centre, the parties are to attend a Family Dispute Resolution Conference at Legal Aid Queensland as organised and directed by the Independent Children’s Lawyer.
9.The matter be adjourned for mention to the Federal Circuit Court of Australia at Brisbane at 9.30am on 3 September 2019.
(As per the original)
At [30] and [34] of her Honour’s reasons for the orders, Judge Tonkin recorded:
30.The Court discussed with the parties the possibility of the child re connecting with her mother in a safe (supervised) environment and a wishes report being obtained. The father indicated that he would facilitate the child spending two sessions with the mother at the [Town R] Contact Centre should the child agree to spend that time with her mother. The Court enquired whether the mother wanted an opportunity to reconnect with the child. She said “the best way to do that was to take her out of the abusive situation and put her immediately back into my care.” The Court declined the mother’s request to move the child immediately to the mother’s care indicating it was not in her best interests to disrupt her current arrangements without hearing further evidence. The mother agreed to attend two sessions at the [Town R] Children’s Contact Centre with the child.
…
34.I am satisfied that it is in the child’s best interests on an interim basis that she spend time with the mother on two occasions at the [Town R] Contact Centre supervised. That order is reasonably practicable as both parties currently live in [Town R] though I note that the mother has only temporary accommodation.
(As per the original)
The plain intent of the orders made by Judge Tonkin, informed by the reasons her Honour gave for making them, was that on an interim basis the child should spend supervised time with the mother on two specific occasions at the Town R Children’s Contact Centre, her Honour having rejected the mother’s contention that orders be made for the child’s “immediate return to her care”.
There is no substance in this complaint.

The challenges founded on final orders being made

The subject orders are interim orders. The primary judge did not purport to make any final orders and as is clear from the terms of the orders her Honour made they are interim orders only.
There is no substance in the contention of the mother permeating a number of her complaints that her Honour proceeded to make final orders and there is thus no merit in these complaints.
In relation to the primary judge’s order to transfer the proceedings to the Family Court of Australia such an order is authorised by s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) and under subsection (6) of that section an appeal does not lie from a decision to transfer the proceeding. It is thus not open to the mother to challenge in this appeal the order for transfer.

Conclusion

There being no merit in any of the mother’s challenges, the appeal must be dismissed.
In that event, neither the father nor the ICL sought any order for costs and it ought be ordered that there be no order as to costs of the appeal.

Additional observations

In the course of argument of the appeal the mother expressed her position to be that she would not undergo any ordered psychiatric assessment, essentially because of her contention to the effect that she is being stigmatised by such a requirement when her mental health is stable, as evidenced by the fact that she lives in the community and is not classified by any authority as a “mental health patient”.
The focus of Part VII of the Act is upon the rights and best interests of the child or children the subject of parenting proceedings rather than upon those of parents. It is never any part of the purpose of an order for independent psychiatric assessment, nor is it here, to impose unfairly upon the rights of a parent. The purpose of such an order is for the Court to have independent evidence of parenting capacity, referable to the s 60CC considerations that the Court is mandated to apply, when an issue of substance is raised in proceedings warranting such evidence, so as to be in a position to properly determine orders in a child’s best interests.
That is so here and if all the mother says about having achieved stability and absence of effects upon her of her historical mental health issues is true, it is more likely than not that the ordered assessment will vindicate the mother and advance her case.
Whilst the mother may elect not to comply with the order for an independent assessment, that very fact may be taken to be contrary to the case she advances as to the stability of her mental health. Moreover, whilst this will be a matter for the judge in the trial division who becomes seized of this matter, such an election carries the risk that the mother’s application cannot advance any further unless and until she complies with the order.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 May 2020.

Associate:

Date: 29 May 2020