Linton & McDonald
[2007] FamCA 269
•29 March 2007
FAMILY COURT OF AUSTRALIA
| LINTON & MCDONALD | [2007] FamCA 269 |
| FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of child |
| APPLICANT: | Mr Linton |
| RESPONDENT: | Ms McDonald |
| INTERVENOR: | The Director-General, Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ross Clarke |
| FILE NUMBER: | SYF | 2775 | of | 2000 |
| DATE DELIVERED: | 29 March 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 - 13 March 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Falloon |
| SOLICITOR FOR THE APPLICANT: | Browns The Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE RESPONDENT: | David Cohen & Co |
| COUNSEL FOR THE INTERVENOR: | Mr Moore |
| SOLICITOR FOR THE INTERVENOR: | Department of Community Services |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Hausman |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Ross Clarke & Associates |
Orders
(Made 14 March 2007)
The Orders of 3 November 2003 be discharged.
The child, a daughter, born in June 1999 live with the father and that he have the sole parental responsibility for making decisions with respect to the long term and day to day care, welfare and development of the child.
The mother spend time with the child as follows:-
3.1.From 1pm to 6pm each alternate Saturday in one week;
3.2.From 10am to 3pm each alternate Sunday in each other alternate week;
3.3.On Christmas Day in each year between 4pm and 7pm;
3.4.During the first half of all school holidays on each Tuesday from 1pm to 6pm and on each Thursday from 1pm to 6pm;
3.5.On the child’s birthday being in June in each year between 4.30pm and 7.30pm;
3.6.On Mother’s Day in each year between 10am and 3pm;
3.7.On the mother’s birthday in each year between 4.30pm and 7.30pm;
3.8.That any time that the child would otherwise spend with the mother pursuant to order 3.2 above be suspended on Father’s Day in each year;
3.9.The father is to arrange with any school that the child shall attend from time to time, that the mother be provided with copies of all school reports, circulars and documents relating to the child’s education and extra curricular activities associated with that school;
3.10.The child shall spend time with the mother only if one of the following persons (“the nominated supervisor”) is present with them:-
3.10.1.The maternal grandmother, Mrs M;
3.10.2.The child’s godfather Mr G;
3.10.3.Dr J;
3.10.4.Any other person who is nominated by the mother with not less than 48 hours notice to the father and who is known to and approved by the father.
For the purposes of changeovers for the time periods referred to in these Orders the mother will make arrangements for the nominated supervisor to collect the child from the father’s residence and the father shall collect the child from an agreed address from the mother and the nominated supervisor.
The child spend time with her maternal grandmother and/or her maternal grandfather on each Tuesday during school terms from after school until 6pm and at other times on a flexible and liberal basis.
It is noted that should the mother and her parents agree, the mother can also spend time with the child during the times referred to in order 5 but the mother not stay overnight with the child in the same residence.
Each party shall ensure that the child can communicate with the other by telephone at all times.
The father shall do all things reasonably necessary on his part to facilitate e-mail communication between the child and the mother.
The child shall not be required to attend mass with the maternal family more than once a week.
In the event that the child suffers illness or injury requiring hospital admission then the parent having her care at that time shall inform the other parent as soon as is reasonably practicable and shall do all things necessary on his or her part to authorise provision to the other parent of all information relating to the child’s treatment and care.
The mother shall not take the child outside the Sydney metropolitan area.
Each party shall advise the other of any change of his or her current address or telephone number within 48 hours.
Neither party shall denigrate the other in the presence or hearing of the child or permit any other person to do so.
The Independent Children's Lawyer make inquiries as to the availability of the Children of Parents with Mental Illness program or any like program which is offered by NSW Health and provides psycho education and support for children in the child’s situation and to facilitate arrangements for the child to participate in such a program if the Independent Children's Lawyer believes that is appropriate.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Linton & McDonald.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2775 of 2000
| Mr Linton |
Applicant
And
| Ms McDonald |
Respondent
REASONS FOR JUDGMENT
This case is about what time and in what circumstances the child born in June 1999 will spend with each of her parents.
APPLICATIONS
Father
The father in final submissions sought the following orders:
1.All previous orders are discharged.
2.The father shall have sole parental responsibility for the child [a daughter] born [in] June 1999.
3.[The child] shall live with the father.
4.Subject to these orders, and unless otherwise agreed between the parties, [the child] shall spend time with the mother:
a. in the first week of every two-week period during school terms, on Saturday from 11am until 5pm;
b. in the second week of every two-week period during school terms, on Sunday from 11am until 5pm;
c. on each Tuesday during school terms, from after school until 6pm;
d. during the first half of all school holidays, on each Friday from 10am until 6pm and on each Monday from 10am until 6pm.
5.These orders shall be suspended as necessary in order for [the child] to spend time:
a. with the mother in each year on Christmas Day from 4pm until 7pm;
b. with the mother on [the child’s] birthday from 4pm to 7pm;
c. with the mother on Mother’s Day from 10am until 2pm;
d. with the father on Father’s Day.
6.[The child] shall spend time with the mother only if on one of the following persons (“a nominated supervisor”) is present with them:
a. the maternal grandmother [Mrs M];
b. [The child’s] godfather [Mr G];
c. Any other person who is nominated by the mother with not less than 48 hours prior notice to the father, and who is known to and approved by the father.
7.For the periods of time [the child] will spend with the mother pursuant to orders 4(a), (b) and (d), and order 5(a), (b) and (c), the mother accompanied by a nominated supervisor shall collect [the child] from the father’s residence and the father shall collect [the child] from an address agreed between the father and the nominated supervisor.
8.For the periods of time [the child] will spend with the mother after school each Tuesday, [the maternal grandmother] shall collect [the child] from school and return her to the father at his residence.
9.The father is at liberty to arrange for [the child] to spend time with the maternal grandparents at their home, and such time can include overnight stays provided that the mother is not also then staying overnight at the maternal grandparents’ home.
10.Each party shall ensure that [the child] can communicate with the other by telephone at all times.
11.The father shall do all things reasonably necessary on his part to facilitate e-mail communication between [the child] and the mother.
12.During the time she spends with the mother or the maternal family [the child] shall not be required or invited to engage in any extra-curricular activity unless the father has first been given not less than 14 days notice and has consented in writing to [the child’s] participation in the activity.
13.[The child] shall not be required to attend mass with the maternal family more than once a week.
14.The father shall authorise any school attended by [the child] to provide to the mother copies of all [the child’s] reports and any other information relating to [the child’s] progress and activities at school, provided that the mother shall pay any resulting costs.
15.In the event that [the child] suffers illness or injury requiring hospital admission then the parent having her care at that time shall inform the other parent as soon as is reasonably practicable and shall do all things necessary on his or her part to authorise provision to the other parent of all information relating to [the child’s] treatment and care.
16.The mother shall not take [the child] outside the Sydney metropolitan area.
17.Each party shall advise the other of any change of his or her current address or telephone number within 48 hours.
18.Neither party shall denigrate the other in the presence or hearing of [the child] or permit any other person to do so.
19.Neither party shall use illicit substances or be under the influence of any illicit substance while [the child] is in his or her care.
20.Neither party shall submit [the child] for:
i. psychological assessment; or
ii. psychiatric assessment
or arrange for her to attend on any counsellor other than a school counsellor without the express written consent of the other party.
The father revised in oral evidence his position in relation to the supervisors, the mother’s brother and his partner. He said that he would only be willing to have them as supervisors if they agreed that they would remain with the child whilst she was with her mother, using the father’s words “from first ball until stumps”.
Mother
Counsel for the mother provided the Court a document the mother had prepared as to the proposed orders sought and mentioned in her oral evidence. This document became exhibit A. Counsel for the mother conceded, in part, that it covered matters that could not be determined by this court. Other matters were not the subject of any evidence. I accept the terms of the document were not the subject of any modification after the receipt by the mother of legal advice. The document is in the following terms:
1) That [the child] have contact with her mother […] on a supervised basis until such times as the serious allegations of abuse to her person, are established by the Family Court of Australia and the Local Court [W], as false and indeed a fabrication on behalf of her father to paint her mother as a psychiatrically unwell and unfit parent.
2) That until such times as these serious allegations are established as untrue, [the child] live with her father at his housing commission premises situated in [C].
3) That within the time required to thoroughly investigate the allegations of abuse made against [the child’s] mother, [the child] and her mother exercise access time periods on the following days and times with the assistance of the following support people/supervisors (please refer to agreement from [Dr J] and the proposed agreement from [Mr C]) on the following days and time:
Every Saturday: 12-4pm
Every Sunday: 12-4pm
Every Wednesday: 4-6pm
Every Thursday: 4-6pm4) That [the child] be permitted to resume studies and instruction in scripture at the primary school she attend in [B], known as [B] Primary School.
5) That all costs for [the child’s] day to day care be itemized by her father […], and a functional budget is suggested by the technicians of the court with the view to reintegrate [the child’s] mother into the day to day costs and most significantly, the decision making process concerning [the child’s] health, her basic grooming, her clothing, her school fees, her extra curricular activities, holiday budgets, long term savings and any other such costs that may arise and thus pertain to the day to day care of [the child].
6) That the apprehended violence order be dealt with in the Local Court or the Family Court of Australia, in context of the findings of the Family Court concerning the above mentioned allegations.
Independent Children's Lawyer
The Independent Children's Lawyer at the commencement of the hearing, sought orders in the following terms as a preliminary position:-
1.That the orders of 3 November 2003 be discharged.
2.The child [a daughter] born [in] June 1999 live with the father and that he have the sole responsibility for making decisions with respect to the day to day care welfare and development of the child.
3.That the other spend time with the child as follows:-
3.1 From 10am to 8pm each alternate Saturday;
3.2 Each alternate Sunday from 10am to 5pm;
3.3 On Christmas Day in each year between 4pm and 9pm;
3.4 On the child’s birthday being 29 June in each year between 4.30pm and 7pm;
3.5 On Mother’s Day in each year between 10am and 6pm;
3.6 At any time that the mother was otherwise spend with the child be spent during the second half of each school holiday period, being school holidays at the terms 1, 2, 3, & 4 in each year, to allow the father and the child to spend such time together;
3.7 That any time that the child would otherwise spend with the mother pursuant to order 3.2 above be suspended on Father’s Day in each year;
3.8 The father is to arrange with any school that the child shall attend from time to time to provide the mother with copies of all school reports, circulars and documents relating to the child’s education and extra curricular activities associated with that school;
3.9 At all time periods referred to pursuant to these orders to be spent by the mother with the child are to be supervised by a person approved of by the father or as ordered by this court;
3.10 For the purposes of changeovers for the time periods referred to in these orders the mother will make arrangements for an appropriate supervisor to collect the child from the father’s residence and the father shall collect the child from an agreed address from the mother and the supervisor.
3.11 It is noted that the maternal grandparents shall contact the father to make arrangements to spend time with [the child] on a flexible and liberal basis.
During submissions the Independent Children's Lawyer amended his preliminary position in the following way:
6.1.That order 3.1 be reduced from 10 hours to 3 hours;
6.2.That order 3.2 be reduced from 7 hours to 3 hours;
6.3.That order 3.3 be reduced from 5 hours to 3 hours;
6.4.That order 3.4 be extended from 2½ hours to 3 hours;
6.5.Order 3.6 was eliminated;
6.6.There was a provision that the child spend three hours with the mother on the mother’s birthday;
6.7.Order 3.9 was amended to remove the requirement for the child to be supervised by a person approved by the father and to set out the following four approved supervisors:
6.7.1.The maternal grandmother
6.7.2.The mother’s brother
6.7.3.The child’s godfather
6.7.4.Dr J.
6.8.Order 3.11 was amended so that the father would contact the maternal grandparents to make arrangements.
The Director–General of the Department of Community Services
The Director-General seeks the same orders as the Independent Children's Lawyer.
CHRONOLOGY
The father was born in November 1955 and is now aged 51 years.
The mother was born in March 1974 and is now 33 years of age.
The parties commenced a relationship in December 1996 and commenced living together around the time that the child was born.
The parties ceased living together permanently in July 1999 but the relationship continued on an “on again off again” basis.
On 3 November 2003 consent orders were made by the Family Court at Sydney (see below). Under this arrangement the father had the child with him for five nights a fortnight and half the school holidays.
In July 2004 the parties came to a private agreement whereby the child’s time with her father was increased to 76 hours per week (46% of the time).
On 6, 11 and 12 July 2005 DoCS received notifications that the child had been sexually assaulted by her maternal aunt, the mother’s sister. When interviewed by officers of the Joint Investigative Response Team, the child denied all claims of sexual abuse. The allegations were not substantiated.
On 8 July 2005 an incident took place involving the child and her mother. It is alleged that the mother grabbed the child by the throat (see below).
On the weekend of 16 and 17 July whilst the child was with the mother, it is alleged that the mother took hold of the back of her neck and pushed her head down whilst she was checking for head lice.
On 21 July 2005 the father took the child to her normal general practitioner, Dr S. Dr S identified small marks on the back of the child’s neck and as a result of the history given reported the child to DoCS as being a child who was at risk of physical abuse, psychological abuse and neglect.
That report was received by DoCS on 22 July 2005.
On that day officers of the Director-General interviewed the child at her school. The child made disclosures in respect of two incidents (an incident where her mother grabbed her by the throat and another incident where her mother pushed her by the neck from behind). The child told the officers of the Department that she felt 100% unsafe with her mother (paragraphs 9 and 10 of Ms D’s affidavit).
Also on 22 July 2005 the child was assumed into the care of the Director-General. She was taken to the Sydney Children’s Hospital. The paediatrician who examined her at the hospital was unable to find any evidence of injury. The child was placed with her father.
DoCS interviewed the mother on 25 July 2005. The mother told DoCS that she was removing head lice from the child and may have pushed her down as she was squirming (paragraph 12 of Ms D’s affidavit).
On 26 July 2005 the Director-General lodged a withdrawal of the assumption of care with the Children’s Court and the child was returned to her mother.
On 28 July, on the advice of the Department the father filed an application for residence in the Federal Magistrates Court and it is that application that I am dealing with now on a final basis.
On 4 September 2005 the father attended the mother to collect the child at the end of the child’s time with the mother. This incident is discussed in more detail below. The father said he heard things whilst he was outside of the mother’s home. When the child came to him he observed injuries. He contacted the police who referred him to Sydney Children’s Hospital. He took the child there. She was examined by Dr B, paediatric registrar. The results of that examination and Dr B’s oral evidence are discussed in more detail below.
On 6 September 2005 the Director-General assumed care of the child. The child was also interviewed on that day by the Department.
On 8 September 2005 the Director-General obtained an emergency care and protection order from the Children’s Court for 14 days. On 22 September 2005 the Children’s Court extended the emergency care and protection order so that it expired on 6 October 2006.
On 17 October 2005 interim orders were made by Justice Flohm (see below). Those orders are currently in force although due to problems with supervision they have not operated in accordance with their terms, particularly in recent times.
On 15 May 2006 an Apprehended Violence Order was obtained against the mother naming the child as the protected person. It’s primary condition is that the mother not molest the child and the order is for a period of two years (to expire on 15 May 2008).
ORDERS MADE
Consent orders of 3 November 2003
Under these orders the child lived with her mother most of the time and the parties had responsibility for the day to day care, welfare and development of the child when she was with them.
The father had the child for five nights in each fortnight (from 7.30pm Saturday until commencement of school the following Tuesday in one week and from 7.30pm Saturday until the commencement of school on Monday morning in the second week). School holidays were shared evenly.
The July 2004 agreement
On 8 July 2004 the parties came to a private agreement in which the child was in her father’s care for 46% of the time and the mother’s care for 54% of the time. The written agreement by both parties was placed on the father’s file held by the Family Assistance Office of the Australian Government. Under this arrangement the father had the child with him for 76 hours in each week (see annexure A to his affidavit sworn 4 October 2005).
On 17 October 2005 Flohm J made the following interim orders:-
1.That [the child] born [in] June 1999 (“the child” reside with [the mother] at the following times:
(i) from 9am to 8pm each Saturday commencing on Saturday 22 October 2005;
(ii) each alternate Sunday from 9am to 5pm commencing on Sunday 30 October 2005;
(iii) during the school term, each Wednesday from after school to 7pm, commencing on Wednesday 26 October 2005;
(iv) from 9am to 8pm on the following days during the December 05/January 06 school holidays:
30 December 2005; 6 January 2006; 9 January 2006; 13 January 2006; 20 January 2006; 23 January 2006;
(v) from 9am to 8pm on the following days during the 1st term 2006 school holidays:
14 April 2006; 21 April 2006;
(vi) at any other time as agreed between the parties subject to orders 3, 4 and 5 hereof,
and the mother is to have responsibility for the day to day care, welfare and development of the child when she is in the mother’s care.
2.That the child is to reside with [the father] at all other times and the father is to have responsibility for the day to day care, welfare and development of the child when she is in the father’s care.
3.That when the child is residing with the mother on Saturday, Sunday or during school holiday periods, the mother is to use the maternal grandparent’s home at [V] as her place of residence at those times, although the mother and child may pursue activities away from that home for short periods.
4.That for the purpose of residence changeover, the mother’s residence periods which take place on Saturday, Sunday or school holidays are to commence by the mother and an adult member of the maternal family collecting the child from the father’s residence and are to conclude by the father collecting the child from the maternal grandparent’s residence.
5.That for the purpose of Wednesday residence changeover during term time, the mother and/or an adult maternal family member is to collect the child from school and the mother and a maternal family member are to return the child to the father’s residence.
6.That when the mother’s residence periods take place on consecutive days, and provided that the father is in agreement with the following course, the child may spend the intervening nights, or some of them, at the home of the maternal grandparents provided that:-
(a) one of the maternal grandparents is present at that home overnight; and
(b) the mother is not present at that home outside the residence periods specified in order 1 hereof.
7.That the mother’s period of residence pursuant to order 1(ii) hereof is varied on 25 December 2005 to commence at 3pm and conclude at 9pm, or such other times as may be agreed between the parties.
8.That there be reasonable telephone contact between the child and the parent with whom she is not residing.
9.That both parents are hereby restrained from initiating discussion with the child on the subjects of these proceedings, where she will be residing in the future or any conduct by the other parent.
10.That a Family and Child Psychiatrist is appointed to prepare an expert’s report and when the identity of that expert has been ascertained the separate representative is to provide direct to my associate a short minute of order and those orders will be made in chambers.
11.That the Department of Community Services (“DoCS”) is requested to prepare a report as to the allegations contained in the father’s affidavit sworn 4 October 2005 and filed 6 October 2005 and any other allegations of abuse of which DoCS has knowledge and that report is to be filed in this court no later than 30 November 2005.
12.That thereafter the Magellan Registrar at this court is to provide each party with a copy of the report prepared by DoCS.
13.That the mother file and serve a response to the father’s application for final orders no later than close of business on Friday 21 October 2005.
14.That the parties attend a trial notice listing with the Magellan Registrar on 25 October 2005 at 2.15pm at which time a hearing date will be allocated, estimated hearing time provisionally being 5 days.
15.The court directs that the final hearing is to be listed before a judge other than Justice Flohm.
16.That liberty is granted to the parties to relist the matter before Justice Flohm on 7 days notice by arrangement with her Honour’s associate for the raising of any procedural issues or issues relating to the implementation of these interim residence orders.”
CREDIT
On the whole the father gave responsive answers to questions asked of him. On occasions he tendered to deliver a speech rather than shortly address the question that was asked of him.
The father’s evidence about the observations he made when the child was in her mother’s car on 8 July 2005 were somewhat inconsistent. He also gave evidence that the injuries sustained by the child on 4 September 2005 included an injury to her temple. That was not exactly consistent with the medical evidence.
On the whole however the father impressed as an honest witness who was attempting to provide information to the Court to the best of his recollection.
In comparison, the mother’s evidence was given in a way which was symptomatic of her mental illness. Although she spoke in an articulated way, she found it extremely difficult to focus on the question that was being asked. Questions asked of the mother seem to trigger in her a reaction to a phase in the question. This reaction led to an “answer” that might go on for 60-90 seconds which was non responsive to the actual question asked. It was very difficult in these circumstances to assess her truthfulness. Whilst the mother may not have been deliberately setting out to give the answers in the way she did, the manner in which she gave her evidence and the affect with which she gave her evidence greatly diminished the weight that I could place on what she said.
The mother behaved in the witness box in much the same way as Dr Q described her behaviour at the time of her interview. At page 15 of Dr Q’s report she comments “it was impossible to direct the mother. When I did ask her questions she seemed to experience this as an attack but usually answered, although tangentially and often in an incomprehensible way”. That is an accurate description of the mother’s behaviour in the witness box for most of the time she was there.
On a number of occasions the mother did some unusual things in the witness box. She stood up on more than one occasion. On another she bent over and said she was picking some fluff off the floor of the witness box.
The mother was belligerent and aggressive a lot of the time she gave evidence. She became distressed. Both Counsel for the father and the Independent Children's Lawyer truncated their cross examination of the mother.
Where there is a direct conflict in the evidence of the mother and the father, I prefer the evidence of the father.
PARTICULAR INCIDENTS
8 July 2005
The father’s evidence is that on 8 July 2005 contact changeover took place by agreement at M. The father says that he met the mother and the child at a café. The mother said she needed to change the child’s clothes and took the child back to her motor vehicle and got into the front seat of the car with her. The father says that he was about 1½ metres away from the car. He said he heard the safety buttons go down and observed the mother changing the child’s top. He said the mother appeared to become angry with the child and started to shout at her. He could not hear the exact words as the child and her mother were in the car and the windows were up. In his written evidence he said that he observed the child started to cry. It is clear from his written evidence that this observation was made whilst the child was in the car. He said in his written evidence he saw the mother grab the child around the front of her throat and held her for about 20 seconds. In his oral evidence he said that might have been 5 – 10 seconds or up to 20 seconds. The mother was yelling. The child appeared very visibly upset, her face was red and she was crying. He said he did not intervene as he had observed the car was locked and knew he was unable to get in. He said he was afraid that if he attempted to intervene the situation could have worsened with the mother becoming more angry and violent. As soon as the mother turned away the child opened the car door and ran out to him.
The following evidence was:-
Counsel for ICL
[The child], yes. Was she crying?
Father
It would be hard to say because the windows were closed and they’re tinted so I couldn’t see whether there were tears in her eyes but I could see that she was, you know, scared or worried but she wasn’t glowing
Counsel for ICL
She wasn’t what?
Father
She wasn’t glowing as a little child should, she was a bit terrified, she just had a look on her face like she was worried, but I couldn’t see if she was crying or not.
Counsel for ICL
Well if the windows were tinted then you wouldn’t know if she was pale or flushed or
Father
I couldn’t say what colour her face was I could just see that she was traumatised, scared, she was looking to me out of the car going like, you know.
So there are inconsistencies on a number of points in the story given by the father.
Firstly there was uncertainty as to how long it was that he said the mother had the child by the throat. In the end he settled for the explanation “it seemed like an eternity at the time”.
Secondly he said that the windows of the mother’s motor vehicle were tinted and so he was unable to see colours through the glass. In any event he is colour blind. That cast doubt on his written evidence that he observed that the child’s face was red whilst she was inside the car. His explanation for that was that when she got out of the car her face was red.
Thirdly it seems the father didn’t see the child crying.
The father was asked why he did not scream out to the mother or bang on the car in some way to attempt to distract the mother from what she was doing. He was also asked as to why he didn’t call out for help.
He had some difficulty in giving a response to those questions and in the end settled for saying that it was all over within seconds of it beginning. It was put to him that he had exaggerated this incident. This was something he did not accept.
The mother in her written evidence (paragraph 2 of her affidavit sworn on 12 October 2005) simply denies that anything like what the father described happened on 8 July 2005. She confirms that contact changeover took place by agreement at a café at M but she says that when the father arrived she was sitting at a table with the child and friends outside the café. She says she did not take the child into her car. She denies she grab the child around the throat. She says that the father picked up the child outside the café and left. The child, she says, was not distressed when she left. Whilst that evidence was sworn by the mother in October 2005 none of the friends that the mother says she was sitting with at the table when the father arrived and took the child away gave written evidence in October 2005 nor were any of these friends called to give such evidence at the final hearing.
In my view it is likely that there was some exaggeration in the story given by the father. I accept however the essential points, namely that whilst locked in the car with the child the mother took her by the throat and that the child was observed by her father as looking a bit terrified.
16 & 17 July 2005
These days are a Saturday and a Sunday during which the child was in her mother’s care.
The mother’s written evidence was that on 16 and 17 July she went with the child, her brother T and his fiancé L for a weekend at U.
The father says that he thinks the child came back into his care on Sunday evening, 17 July. He says in his oral evidence that the child complained about back pain. He examined her back and saw redness to her back.
The father says that by Thursday 21 July the child had developed a cough and seemed unwell and he decided to take her to see Dr S, her general practitioner. She continued to complain of back pain. The child told her father “mum pushed my head down, to check me for head lice. It hurt. My back hurts Daddy, it hurts me when Mum pushed my head down”.
There is confusion in the father’s written evidence because he says that this statement made by the child was made on “Thursday 19 July 2005”. Thursday was in fact 21 July.
The father in oral evidence also said that the child had made this complaint earlier in the week and had also asked him to allow her to let the police know what was happening. In his written evidence the father says that the child also told him that her maternal uncle and his friend had been present during the incident and that “[The maternal uncle] looked after me after Mum hurt me because I was crying”.
The father says that at some time on Thursday 21 July 2005 he decided that he would encourage the child to tell Dr S what had happened in her mother’s household on the previous weekend.
Dr S’s notes are in evidence (see exhibit I.C.L. 1). Dr S herself was not called and her notes are hearsay. Given that after examining the child she reported the matter to DoCS on her own initiative, it is appropriate to set out her notes taken on 21 July 2005 in full:-
“21.7.05 – Cough
* small marks on back of neck. Says mummy pushed head forward forcibly
- last w.e – she was grabbed by the throat by mum (‘mummy was angry’)
* unwell with cough.
Dad days ‘she is often under dressed when he picks her up from mum’.
Mum has bi-polar disorder – depressed, suicidal.
- tends to blame [the child] for things.
‘No cooking at home’
‘Mum can’t get up to take her to school’.
O/E: no other bruises
Chest clear
Ears – a bit better
- report to DoCS
at risk of physical abuse,
psychol. abuse,
neglect
O/E generally in good condition not under nourished.
Small marks (? fading bruises on back of neck). No other trauma. Alert, happy, in good spirits. In general is happy in consultations.
Slow resolution of glue ears but no problems with hearing.
Father says he takes care of [the child] during the school week Sun – Friday evening – at present only goes to mum on w/e.”
The father says that on Friday 22 July at around midday he was contacted by Ms C from DoCs who informed him that she was on her way to interview the child at her school.
At 2.30pm that afternoon the DoCS worker told the father that she had interviewed the child and that she was going to apply for an Apprehended Violence Order against the child’s mother and that the child would be taken into the care of the Department for up to 14 days and during that time the child would be released into his care. A copy of that order is annexure “A1” to the father’s affidavit sworn 4 October 2005.
The father said that DoCS at that time recommended that he file an application for custody at the earliest possible time.
The Department also provided him with a notice requiring the child to be medically examined. He took the child to the Children’s Hospital, Child Protection Unit. The child was examined there by a doctor and a social worker. He said two constables and two detectives from M Police were also present at the hospital.
Following the examination he went back to M Police Station the child was interviewed by the police and they returned home at about 8pm.
The medical practitioner who examined the child on 22 July was Dr M who was a paediatrician.
The history that the child gave the doctor was in the following terms:-
“When [the child] was asked why she had come for a medical assessment, she replied ‘my mummy was mean to me and hurt my neck’. She described an episode previously, when her mother ‘squeezed my neck’ and also ‘pushed on my tooth’. This was an episode witnessed by her father.
Regarding the current episode, she described being with her mother last weekend (16/17 July 2005). She reported that when her mother was looking for nits in her hair, she pushed her head down forcibly. [The child] demonstrated hyper flexion of her neck as she gave this description.
It was reported that there was visible bruising on [the child’s] neck after this occurred. She reported that she has had persistent pain in her neck and her back subsequently, which was still present......
During the initial interview, [the father’s] mobile phone rang. When [the child] became aware that it was her mother on the phone, she commented to us ‘that’s the one who hurts me’.”
On examination the doctor found that the child had no bony tenderness and did not complain of pain with firm palpitation. The child had a full range of movements, active and passive of her neck, her back and her limbs.
Her only skin markings were an area of mild erythema on posterior part of her neck, to the left of the midline. This area of redness measured 3 centimetres by 1 half of a centimetre. There was no obvious bruising and no scratch marks or scars. There were no other bruises or signs of injury.
The doctor noted in summary that her examination was five or six days after the alleged incident. She said that although the child complained of general discomfort around her neck and her back, there was no evidence of injury. Her tenderness may be explained by musculoskeletal tenderness, either related to the incident reported, or as part of her current viral infection.
In general terms the skin markings observed by the doctor, being an area of redness on the posterior part of the child’s neck to the left of the midline, was generally consistent with observations the father said he made. It is important to note however that in the paediatrician’s view these were not bruises.
Dr M was not called for cross examination.
Nor was Dr S called for cross examination. Dr S’s notes clearly say that there was small marks on the back of the child’s neck which she puts a question mark against as fading bruises.
I am unable to say on the evidence presented as to whether or not what Dr S saw was the same thing that Dr M described a day later. On balance it probably was. The specialist opinion disputed Dr S’s provisional diagnosis that maybe the markings were bruises.
The Departmental officer, Ms D, interviewed the mother on 25 July 2005. The mother provided the explanation that she was removing head lice from the child and may have pushed her down as she was squirming.
On 26 July 2005 the Department lodged a withdrawal of assumption form with the Children’s Court. The mother signed an undertaking agreeing to reside at her parent’s home with the child for a two week assessment period.
The mother says that on Saturday 16 July 2005 after dinner she bathed the child. She says that whilst bathing the child she washed her hair. After the bath she sat the child on some cushions in front of the seat that the mother was sitting on. She said that she then commenced treating the child’s hair for head lice. She used a very fine comb to do that. She said the child did not like having her hair combed for head lice. Whilst she was combing the child’s hair, the child started to cry and said to her “mummy don’t come near me for head lice”.
The mother specifically says that at no time whilst combing the child’s hair did she push the child’s head down. She said that the child made no complaint to her that weekend of a sore back nor did she observe any bruises on the child’s back.
The mother’s sworn evidence in her affidavit of 12 October 2005 directly conflicts with the evidence of Ms D, the Departmental officer, as to what Ms D says (at paragraph 12) the mother admitted that she might possibly have done, namely “may have pushed her down as she was squirming”. Ms D’s evidence on this issue was not challenged.
I find on balance that sometime on 16 or 17 July 2005 the mother had pushed the child’s head down forcibly when looking for nits in the child’s head and that this force caused the child pain.
4 September 2005
The father says that on Sunday 4 September 2005 he attended the mother’s home to pick the child up. He says he got out of his car and knocked on the mother’s front door. He could hear the mother and the child yelling inside the house and it sounded like the child was crying. He knocked on the door, called out “please don’t yell at each other, just let [the child] come outside”. He returned to his car.
He says a few minutes later the mother came outside with the child. The child was crying. The child got into his car. The mother then went back inside the house.
The father said that he observed a bruise over the child’s nose and a large welt-like bruise next to her left eye and temple. He asked the child what happened. The child said “mum grabbed me by the nose and lip, and hit me with her brush, with the handle”. The father then said to the child “did anything else happen?”. The child said “mum poked me and told me to shut my mouth about the things that mummy does”.
When the father got home with the child he telephoned the mother. The mother informed him that she was at a police station. The father then telephoned M Police. He says that he was advised by the police to take the child to the Child Protection Unit at the Children’s Hospital. In his oral evidence he said that the police actually rang ahead to tell the hospital that he was coming.
The child was seen by Dr B and a social worker. Dr B examined the child. Dr B was a paediatric registrar at the time she examined the child. The medical report from Dr B is annexure B to the father’s affidavit sworn 4 October 2005.
In her report the following appears:-
“HISTORY OF THE ASSAULT OF [THE CHILD]
When [the child] was asked why she had come for a medical assessment, she replied ‘my mum hurt me’. She said that her mother had not woken in a bad mood, but got cross soon after she woke up. She described being in the lounge room ‘not being naughty or anything’. [The child] reported her mother deliberately scratched her under her nose with her finger nails. [The child] was unsure why. She then took her into the bathroom, where she hit her with the ‘spikey end’ of a hair brush against her left cheek and then hit her in the same place with the metal end of the hair brush. [The child] demonstrated being hit. [The child] also described her mother yelling at her a lot this morning.
[The child] said her mother had hurt her on previous occasions, but was vague about any details. She said that her mother was always made at her for no reason.”
Part of Dr B’s report under the heading “examination” is as follows:-
“Examination of her skin revealed a 2 cm x 3 mm linear abrasion over the left cheek bone with minimal associated swelling, and a pinpoint abrasion directly below the right nostril. There were no other bruises or signs of injury.”
Photographs were taken of the child’s injuries but no photographs were tendered in evidence before me.
Dr B’s conclusion was that the child’s injuries were consistent with the story given by the child.
Dr B gave evidence orally.
It was suggested in cross examination by Counsel for the mother that the injuries were consistent with the mother accidentally hitting the child with a brush during the process of vigorously brushing the child’s hair for head lice.
Dr B made it very clear that in her opinion the injuries, particularly the swelling, were not accidental and could not have been caused by any accidental jerk of the head by the child.
The mother’s evidence is contained at paragraphs 18 – 30 of her affidavit sworn 12 October 2005. The mother says that during her brushing of the child’s hair at no time did she complain of the brush touching her face nor did she have a bruise on her nose or a large welt-like bruise next to her left eye and temple.
Paragraph 85 of the father’s affidavit says “a large welt-like bruise next to her left eye and temple”. Dr B describes a “linear abrasion over the left cheek bone with minimal associated swelling”. That is, Dr B didn’t describe an injury to the temple but rather to the cheek bone.
Ms D at paragraph 17 of her affidavit sets out what the child told Ms D at the time as to what had happened. This was not challenged before me.
Justice Flohm in her interim reasons for judgment made a “prima facie finding” on the evidence which was unchallenged at that stage by cross examination. She described this incident as a “very serious issue”. She said she was satisfied that the mother did not on 4 September 2005 deliberately set out in a cruel manner to cause physical pain and injury to her child, as well as fear, but that finding cannot deflect from the fact that on the evidence before her that was precisely the consequences of the mother’s action.
She was not satisfied that the injury to the child’s face was caused accidentally during hair brushing nor that it is likely, as the mother contends, that the mother was unaware that the hair brush came into contact with the child’s face.
Her Honour was satisfied that the most likely explanation was that the mother completely lost control of herself and hit the child twice on the face with the hair brush. She hit her with such force that on at least one of those blows or possibly two, broke the child’s skin, one blow leaving a laceration approximately 2 cm long. Her Honour concluded that that was gross physical abuse and that one would have no difficulty imaging not just the pain but also the fear it would have engendered in a child 6 years of age.
Having heard all the evidence and having had it tested I can only confirm her Honour’s prima facie finding, except that it was a 2cm long abrasion not lacertion.
In an interview with two DoCS officers two days after the incident, the child said that she felt unsafe when with her mother (paragraph 18 of Ms D’s affidavit).
THE MOTHER’S MENTAL HEALTH
In February 2006 Dr Q saw the mother. In her report she assessed that the mother’s mental illness was inadequately treated. On page 26 of her report Dr Q opines that the mother suffers from a schizoaffective disorder, bipolar type, rather than from bipolar disorder. She said that the distinction between these two conditions can be difficult to make and rests chiefly on the presence of features of schizophrenia, in this case delusional phenomena although it was difficult to be certain because the presence of severe thought disorder.
She said in both cases there is a chronic and relapsing condition and the treatment is similar, antipsychotic and mood stabilising medication. She opines that the mother has been suffering from this condition for some years. She said it would be difficult to be confident of a prognosis and given the degree of chronicity and severity of her current presentation it is likely that the prognosis will not be encouraging. Dr Q commented that as at February 2006 the mother had limited insight into her medical condition, she was not on an adequate treatment regime and it may be difficult to ensure her cooperation in treatment.
An addendum to Dr Q’s report dated 29 April 2006 says “I have spoken to Dr P who confirmed that there is no regular arrangement for treatment that the mother tends to come at times of crisis. He would be willing to see her on a more regular basis if she were prepared to make her commitment to regular review”.
On one of the occasions when the mother appeared before me at an interlocutory event she indicated to me that she had recommenced treatment by Dr P on a regular basis.
Exhibit ICL2 contains subpoenaed records from Dr P, the psychiatrist that the mother has been seeing from time to time.
The mother went to see Dr P again in February 2006 and the consultant psychiatrist wrote to the mother’s GP saying that in his view the mother was in good remission and had not suffered any episodes requiring hospitalisation since the age of 22.
At that stage Dr Q’s report had not become available to Dr P.
In May 2006 Dr P wrote to the mother’s GP in the following terms:-
“Thank you for providing the referral for [the mother]. I saw her long before I received a 38 page report on [her] which was made by [Dr Q]. As I suspected part of the problem that [the mother] has is that she was unaware that at the time she was assessed she wasn’t too well. Having now looked at this report it is obvious that in fact that [the mother] was far from well when she was interviewed by [Dr Q].
Unfortunately I think [the mother] has to come to grips with the fact that she has a major psychiatric illness and that she is frequently unaware of how sick she really is and unfortunately it seems there is nobody who relates to her who is willing to give her feedback. I gather in fact that the family are fairly blind to the seriousness of [the mother’s] departure from normal.
I agree that she really should be on an antipsychotic as well as a mood stabiliser or two. Unfortunately many of the antipsychotics that are very useful in bipolar disorder are not the best thing to take if one is obsessed with slimness.
Also I think [the mother] should be seen by a psychiatrist on a regular basis, probably at least every month.
This of course will mean that she will have to find somebody whom she can trust and who will be tolerant of her foibles.”
It seems that the mother saw Dr P on three occasions in the second half of 2006. The subpoena was issued before the last occasion. Dr P’s notes evidence a consultation on 5 September 2006. Dr P’s entry on that day ends with the note “told I’ll help but only on my terms”. The other note is of a consultation on 17 October 2006.
The mother gave evidence that she saw Dr P for the last time before Christmas 2006.
She said Dr P had given her some antipsychotic medication but that it had the side effect of her not being able to get out of bed and she decided that it was not a drug that was assisting her.
As mentioned elsewhere, Dr J has indicated that he would be prepared to give the mother the name of somebody he knows so that she could arrange for a referral through her general practitioner to that person. That has not happened yet.
The concerning thing about all of this is that the mother indicated to me that she was being treated by Dr P and was following his recommendations. His clinical notes indicate that that is not what was happening.
It is more likely that the mother has refused to take antipsychotic medication firstly because she lacks any insight as to what her current mental illness is and secondly because as Dr P notes she is obsessed with slimness and antipsychotics are not the best thing to take if you are worried about your weight.
Many of the things that Dr Q describes in respect of the mother’s presentation (which formed the basis of her diagnosis) were things that were still clearly evident in the way the mother presented during the period of time that she gave evidence.
Dr Q noted that the mother is currently taking Carbamazepine, a mood stabiliser. She has been taking this prescribed medication for many years. Dr Q was of the opinion that this medication is insufficient to deal with the mother’s psychotic symptoms. Dr Q commented that the mother was so thought disordered that it was almost impossible to illicit any reasonable history from her. That was in February 2006. She presented in exactly the same way before me in the witness box.
I find that the mother currently has a mental illness which is not being adequately treated. A number of things flow from that finding.
It may be at some future date the mother will be able to obtain some insight to her mental health problem, seek appropriate treatment and participate in a treatment regime. In those circumstances a different approach might be able to be taken to the amount of time and circumstances in which she spends time with the child.
Dr Q says that there will need to be regular psychiatric treatment for at least twelve months and continuous use of antipsychotic and mood stabilising medication with a report from her treating psychiatrist to the effect that psychotic symptoms and affective disturbance were well contained by treatment. If that were the case then a graded program of increasing contact might be feasible in the future. I can only decide this matter on a final basis on the current condition of the mother’s mental health.
DR J
Exhibit C and D are two documents signed by Dr J.
The mother is currently working for Dr J on a probationary basis. He pays her a salary at a hourly rate. He says on average the mother works for him for five days a week, four hours a day, although that is variable according to his own work patterns and work load.
Dr J is 31 years of age (born 13.8.75). He is not married, has no children and lives alone near O.
He met the mother socially at a restaurant when they were both there with their own group. Dr J has a fond and developing friendship with the mother. They went on holidays together to New Zealand when Dr J was working on a novel. He paid for the holiday. They stayed in separate rooms. Dr J says there has not yet been an intimate relationship between he and the mother.
He has already provided supervision of the mother’s time with the child on two occasions. Once at the mother’s home and once at the Botanical Gardens. Each occasion was for a period of about three hours.
His observation of the child with the mother at that time was that there was an affectionate interaction, they shared a meal together on each occasion, talked music and there was the normal banter that you would expect between mother and child.
Dr J was aware that the need for supervision arose out of allegations of an incident involving a hair brush. He knew also that a report had been prepared. He didn’t know the name of the doctor (Dr Q). He was not aware of the diagnosis.
Realistically he said that he would be able to supervise the child’s time with the mother on a fortnightly basis.
He would also on three days notice be available to supervise a period mid week.
His normal leisure time is Saturday afternoons and Sundays.
The mother in her most recent affidavit (paragraph 74) says the following:-
“Since the time of this expert report (a reference to [Dr Q’s] report), being conducted in 2006, I have conferred closely with my GP, [Dr U], and have continued to receive regular blood tests for the medication my own psychiatrist placed me on in 1996. I am also working closely to rectify this new diagnosis given by [Dr Q] with my employer, [Dr J], neurocognitive specialist, and am waiting to be referred to another treating psychiatrist to continue with my treatment.”
Dr J said that there were the following inaccuracies in relation to the mother’s evidence in paragraph 74. Firstly Dr J is not aware of any diagnosis made by Dr Q. Secondly he is not working closely in a professional sense with the mother. In that regard he said that he had given her articles to read, including articles on assertiveness and managing emotion (these articles are articles designed for use by a lay person). Dr J said that he and the mother had had a discussion about his ability to provide her with a name of a treating psychiatrist with whom she might feel comfortable but she hadn’t specifically asked him to actually provide that name yet. He also said that he is not qualified to directly refer the mother to any psychiatrist (that would have to be a matter that was done through her general practitioner).
Dr J understood that there were allegations of physical abuse against the mother and I am satisfied that he understands what supervision entails. He undertook to me to bring contact to an end if the mother involved herself in threatening behaviour and the child appeared apprehensive or frightened by that behaviour. In those circumstances he would terminate the visit between the child and her mother, would return the child to her father and inform her father as to the reason for the termination of the visit.
MS D
Ms D was not called for cross examination on the basis that certain concession were made by the Department relating to Ms D’s evidence contained in paragraph 18 of her affidavit. Information in paragraph 18 suggest the child may have been sexually interfered with by her mother. There had been an earlier time when the father thought the mother’s sister may have sexually interfered with the child. The concessions made in the hearing before me by the Department was that the Department only went to the Children’s Court alleging physical abuse, not sexual abuse. There were no further investigations of the matters raised in paragraph 18 of Ms D’s affidavit. The evidence “[the child] said: she does this” (The child used her hand to demonstrate a scratching movement on her leg) was amplified by the agreed fact that Ms D observed at that time the child scratching her leg half way between her knee and her groin. Ms D was unable to remember whether or not it was her left or right leg.
I will comment about the sexual abuse allegations later.
STATUTORY CONSIDERATIONS
Section 60B sets out the objects and principles underlying Part VII of the Family Law Act. The most important in the context of this case is Section 68B(1)(b) “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Both abuse and family violence are defined in Section 4(1) of the Act. I find that the child has been subjected to both by her mother and there is a risk of the child being subjected to both from her mother in the future unless adequate arrangements are in place to reduce that risk to an acceptable level.
PARENTAL RESPONSIBILITY
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) however says that the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence.
I find there are reasonable grounds in this case to believe that that has happened. Accordingly the presumption in Section 61DA(1) does not apply in this case. In any event, even if it did apply I would find on the facts of this case that the presumption had been rebutted. It is my view that it is not in the child’s best interest for there to be equal shared parental responsibility for the child.
In paragraph 27 of the mother’s affidavit sworn 11 March 2007 she says:-
“[The father] and I have never shared a time during which we have been able to agree upon issues”.
The mother exhibited a reasonable degree of hostility towards the father during her oral evidence. This was driven by the fact that her perception is that the father has cleverly manipulated the system to steal the child away from her.
The mother’s untreated medical illness would make it extremely difficult for the father to have a discussion with her in circumstances where they had different views in relation to the child’s long term future.
I am satisfied that the father gave the mother notice of the child’s dental problems. The mother however was very upset about what happened in relation to the operation that the child had on her teeth. I find that the parties were not able to reasonably talk to one another about that health issue.
It is simply not in the child’s best interests given the mother’s mental health to require the father to reach a consensus with the mother in relation to decisions in respect of the child’s long term welfare. Accordingly I intend to make an order that the father have sole parental responsibility in respect of decisions relating to the child’s long term care, welfare and development.
PARENTING ORDERS
Given that no order is to be made for equal shared parental responsibility I am not required under the Act to consider the child spending equal time with the mother or substantial and significant time with her mother. Of course there is nothing stopping me considering that in any event but in the circumstances of this case it is clearly not something that would be in the child’s best interests.
In considering what time and under what conditions the child should spend time with her mother my primary duty under Section 60CA is to regard the child’s best interests as my paramount consideration.
In doing so I must consider the matters set out in Section 60CC(2) as primary considerations and matters set out in Section 60CC(3) as additional considerations.
PRIMARY CONSIDERATIONS
In my view the dominant of the two primary considerations on the facts of this case, is subsection 60CC(2)(b):-
“The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
The child’s ability to benefit from having a meaningful relationship with her mother has to be seen in that context.
Section 60CC(2)(b) is closely linked to additional consideration (3)(j) and also is relevant to subsections (3)(b), (c) and (i) and Section 60CC(4).
There are three types of abuse or violence that has been referred to in the evidence. The first is the allegations of sexual abuse made by the child against her mother as they are set out in paragraph 18 of Ms D’s affidavit. I have referred above to her evidence.
Counsel for each of the parties and the Independent Children's Lawyer submitted that this evidence fell short of evidence that would satisfy me that there was an unacceptable risk that the child was sexually abused by her mother. The Department did not attempt to rely upon what the child told Ms D at the time of that disclosure and it hasn’t been the focus of any cross examination during these proceedings. The mother denies and was repulsed by the suggestion that she might have done such a thing. Given the state of the evidence I do not find an unacceptable risk in relation to sexual abuse by the mother against the child.
The second type of abuse is physical.
I am satisfied that there is an unacceptable risk that the child has been physically abused by her mother. That arises out of my findings as to what happened on 8 July 2005, 16 and 17 July 2005 and 4 September 2005.
In addition there is more general evidence that the mother pushed the child, roughly jabbed the child with her hands and yelled abuse at the child, all these on more than one occasion.
The father gives evidence about the mother’s frequent angry and/or abusive words directed at the child or in her presence (see paragraph 16, 20, 28, 29, 77 and 79 of the father’s October 2005 affidavit).
The third type of unacceptable risk falls within the definition of family violence. It is a risk that the mother will conduct herself in such a way whether actual or threatened towards the child that would cause the child to fear or to be reasonably apprehensive about her personal wellbeing or safety.
The mother can be explosive, volatile, loud and aggressive. I have no doubt that if she reacted in that way to something that the child had done which did not meet with her approval her behaviour would be very frightening from the child’s point of view. At page 23 of her report Dr Q noted that it was likely that the mother can be extremely intimidating. I agree with the doctor that there was a history of the mother having lost control and having physically harmed the child. There is a significant risk that that kind of behaviour might be repeated if the child’s time with the mother is not supervised. As Dr Q says in her report: “this is not because of any malicious intent but because she is suffering from a serious mental illness that is not adequately treated. There is a substantial risk that the mother might at some time act on irrational ideas and the consequences of this might be extremely serious”.
At page 19 Dr Q notes that the child has a strong attachment to her mother but is fearful of her mother’s irrational moods and anger, yet is also solicitous towards her.
Dr Q says that the child does have the capacity to understand that her mother is mentally ill and that her expressed wish to remain with her father is based upon her direct experiences of exposure to her mother’s unstable moods and irrational thought processes.
ADDITIONAL CONSIDERATIONS
The child’s views
Dr Q (at page 19) makes it clear that the child wishes to remain with her father but wishes also to maintain contact with her mother in a safe environment. The child also wishes to maintain contact with her extended family. Dr Q said the child is an intelligent child and has become “rather parentified in the way that children with an ill parent often do. She has the capacity to understand that her mother is mentally ill and is both solicitous towards her yet also wishes to separate because of the difficulties with living with her”. Dr Q commented that whilst the child was not of an age where could be expected to have a full understanding of the complexities of what was going on with her mother, the child is making as reasoned a decision as is possible for her at her age.
Dr Q at page 24 of her report says about the mother “her affect was extremely labile and it was clear that she might be experienced as quite intimidating and that she could become angered for reasons more to do with her own disordered thinking rather than any environmental trigger”. Dr Q was of the view that that would be extremely frightening and bewildering for the child.
I do not place a great deal of weight on the child’s view given her age. The more weighty aspect of the child’s views really relates to how the child has reacted to her mother’s unstable moods and irrational thought processes.
Nature of the relationship of the child with each of her parents and with other persons
Dr Q’s view was that the child’s primary attachment was with her father. She also has a strong attachment to her mother but is fearful of her mother’s irrational moods and anger yet is also solicitous towards her. Dr Q says that the child has an appreciation of her mother’s mental illness.
I find that the father does not have any great animosity towards the mother. His motivation in respect of limiting the child’s time with the mother is a response to the mother’s obvious mental problems.
The only evidence I have about the father’s current relationship with the mother’s extended family is from the father. He presents a very positive picture of that. On the evidence I have the child has been seeing the maternal grandparents on a regular and flexible basis. The maternal grandmother spent time with the child at hospital during her recent dental operation.
The early friction with the family, particularly over allegations of sexual abuse in relation to the mother’s sister (for which the father has apologised in writing) seems now to be historical. The father was asked questions about those allegations and I accept that he reacted in a genuine way when they were originally raised.
Dr Q records that in February 2006 the mother was very negative about the father. She told Dr Q he was a drug addict, a drug dealer and violent towards her. None of that has been corroborated by any evidence lead in these proceedings. The father has a criminal record. It contains two minor stealing offences. The father gave an explanation for the second offence when he was 30. The father was also charged with being in possession of marijuana in 1992.
The mother continues today to be very negative about the father.
Dr Q commented that the child has significant bonds with her extended family, in particular her maternal grandparents and that it was important for the child that the resources of that family remain available to the child. I am satisfied that the father understands the importance of the mother’s family as providing a stable supportive extended family in which an environment both intellectually and culturally for the child.
The likely effect of change
The child has now for some considerable time been spending most of her time with the father. The mother has not filed any formal written response to the father’s application (notwithstanding Justice Flohm’s direction to do so). She has however at a previous court event before me and also during this hearing indicated that she wishes the child to be returned to her so that the child spend most of her time with her. The likely effect of a change of that nature on the child would be that the child would be distressed. The child will not be distressed by having some limited time with the mother.
Dr Q assesses that the child is fearful of the mother for obvious reasons and would be distressed if she was placed in the primary care of the mother. It is important though according to Dr Q that the child spend time with her mother but in a safe context.
The practical difficulty and expense of the child spending time with her mother
This was not raised as an issue in the case.
The capacity of each parent or of the other parent to provide for the needs of the child both emotionally and intellectually
The father’s past history was not explored in this hearing and whatever this history might be I accept that he is currently reasonably well grounded and focused on the child’s care and on maintaining a reasonably stable and adequate lifestyle for the child. I find that he is capable of meeting the child’s current needs.
The mother however has a limited capacity for appropriate parenting at the present time but this is entirely because of severe mental illness.
According to the evidence I now have, the maternal grandparents now have a better understanding of the severity of the mother’s current mental illness.
The child’s maturity
Dr Q describes the child as an extremely engaging child who is developing quite well, one who is resilient and has been able to deal quite effectively with her mother’s illness in an intelligent and insightful way. Dr Q recommended that she should have access to the Children of Parents with Mental Illness program which is offered by NSW Health and provides psycho education and support for children in the child’s situation. I did not have any evidence as to whether or not that recommendation had ever been actioned and I intend to make an order that the Independent Children's Lawyer make inquiries about those programs and facilitate and coordinate the child’s attendance at such a program if the Independent Children's Lawyer thinks that that is in the child’s best interests.
FAMILY VIOLENCE ORDERS
Exhibit 1 is an Apprehended Violence Order made on 15 May 2006 for a period of two years naming the child is the protected person and the mother as defendant. The orders are of a generic nature, that is that the mother not intimidate, assault, molest, threaten or otherwise interfere with the child. They are not orders of a nature that would require me to consider the provisions of Division 11 of Part VI of the Family Law Act when I make parenting orders.
MAKING AN ORDER THAT WOULD MEAN THAT FURTHER PROCEEDINGS WERE LESS LIKELY
I have already commented that the orders that I make whilst final may be subject to a new application should the mother be able to satisfy a court that she had dealt with her mental health problems. Apart from that the mother’s current mental illness may mean that further proceedings are initiated by her on other than rational grounds. For the mother to obtain a change in the orders I am making in the future she will need to satisfy a court at a future time that she had adequately dealt with her mental health problems.
CONCLUSION
Having considered the matters referred to above, it is in the child’s best interest to live with her father and have short periods of supervised time with her mother.
PROPOSED ORDERS
Dr Q’s view was that whilst the mother’s mental illness was inadequately treated, contact should remain limited. I agree with that assessment.
The mother’s support network is smaller than it was when she saw Dr Q in February 2006. She is currently not prepared to entertain the concept that her parents would be involved in supervising the child’s time with her.
I accept Dr Q’s view that given the mother’s mental health the opportunity for the child to form compensatory bonds with other mentally well family members on the mother’s side is particularly critical.
The mother has less support now than she did when Dr Q saw her. At that time her parents were of the view that problems with her mental health had been stable until the father had behaved in such a way as to obtain a court order that the child live with him most of the time.
At one point during 2006 the maternal grandparents sought leave to intervene as parties in these proceedings. That leave was granted. Before they became actively involved in the litigation however they ceased to be parties. They were not called as witnesses in the mother’s case.
The father’s evidence is that he has made his own arrangements with the mother’s parents in relation to the child continuing to have a meaningful relationship with the mother’s side of the family. Dr Q emphasises that this is an important thing to maintain in the circumstances where a parent has the mental illness that the mother has in this case.
The mother made it plain during her evidence that she did not thing that it was viable at the current time to involve her parents in assisting her in having time with the child.
I am mindful of the fact that Dr Q’s recommendations are in the context that at that time the child was spending time with the mother at her parent’s home and that that arrangement at that time was progressing satisfactorily.
Up until the present time the father has had the ability to sanction particular supervisors that the mother proposed.
Both Counsel for the mother and the father suggested that arrangement continue. Counsel for the Independent Children's Lawyer and Counsel for the Department however wish to restrict the supervisors to a known list. Counsel for the father submitted that given the level of risk to the child as set out in Dr Q’s report, it might be that the father in utter frustration agrees to somebody (for example Y the flat mate) supervising the time together and then that person may go off and be absent for some time. The purpose of the supervision from the point of view of the Independent Children's Lawyer is to absolutely safe guard the welfare of the child whilst she is with the mother, from the mother who appears to be very ill at the moment according to Dr Q’s report and according to her presentation in the court.
There are currently only three supervisors proposed. One of them, the maternal grandmother, is not someone which the mother seems at the current time to accept as a supervisor.
Another, Dr J, may continue to be available whilst a friendly relationship remains between the mother and Dr J. Given the history, there is some risk however that the mother could alienate that small list of supervisors and she would then be precluded from being able to see the child at all unless she came back to Court. Given her presentation in the Court, her statement to me to the effect that it was an excruciating experience and the successful request that she made to be able to leave the Court before the end of final submissions all point to the fact that it is unlikely that the mother will easily make a further application to the Court. In those circumstances there isn’t an argument for creating some flexibility in placing that flexibility in the hands of the father. Having observed him through the hearing I on balance have some confidence that he will be able in the future approve appropriate persons to supervise the child’s time with the mother. I also take into account what I have recorded the father has said in oral evidence at paragraph 3 of these reasons. Accordingly I intend to allow him to approve any other person nominated by the mother to be present with the mother during her time with the child with not less than 48 hours notice to the father.
Counsel for the Independent Children's Lawyer proposes that the mother’s time with the child be limited to three hours on any particular occasion. It is submitted that “some times less is more”. It is submitted that a longer stretch in time involves a higher risk of physical or emotional harm to the child.
Counsel for the mother says that three hours is unduly restrictive. It interferes with ordinary activities such as going to a movie, the beach or shopping.
On balance I accept the submission of Counsel for the mother. I intend to make the period of the child’s time with the mother five hours rather than three hours.
Counsel for the father correctly made the point that the morning Saturday time did not take into account the evidence of Dr J that his leisure time was Saturday afternoon. I agree with counsel for the father that the time would more appropriately be moved to Saturday afternoon.
The father gave evidence that the mother’s family practice their Catholic faith by attending Mass each day. There was an incident in recent holidays where the child had to be returned because she had hidden her grandmother’s purse. It appears what laid behind that behaviour was a dissatisfaction with having to go to Mass every day. Given that I have given the father sole parental responsibility the order he seeks in that regard should be respected.
A number of other orders sought by the father relate to matters going to specific issues. A number of those orders appear to be in the child’s best interests and accordingly I intend to make them.
I certify that the preceding one hundred and ninety six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
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Key Legal Topics
Areas of Law
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Family Law
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