Michael and Lodders

FAMILY COURT OF AUSTRALIA

MICHAEL & LODDERS [2008] FamCA 389

FAMILY LAW – CHILDREN – With whom a child spends time – Mother’s psychiatric condition – Contact refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Michael

RESPONDENT: Mr Lodders

FILE NUMBER: SYF 3003 of 2005

DATE DELIVERED: 5 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 24, 25, 26, 27 and 28 September 2007; 12 October 2007; and, 11 and 17 December 2007
REPRESENTATION

APPLICANT: Mother in person on 17 December 2007

SOLICITOR FOR THE APPLICANT: Mr Fitzpatrick, solicitor, on 12 October 2007 and 11 December 2007

RESPONDENT: Father in person on 11 and 17 December 2007

SOLICITOR FOR THE RESPONDENT: Mr Benetatos, solicitor, on 24, 25, 26, 27 and 38 September 2007

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms G O'Connor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Lawyers
Orders
The orders of the Court are to be:
1. The mother’s application to spend time and have telephone contact with the child born … May 2003 is refused.
2. The child is to live with the father and spend no time with the mother.
3. The father is to have sole parental responsibility for the child.
4. The mother is hereby entitled to obtain from any school the child attends copies of her yearly, half yearly and term school reports.
5. The father shall notify the mother forthwith of any serious medical condition or illness the child develops.
6. Copies of this judgment and my orders shall be forwarded by the Court via the Registry Manager, Sydney Registry, to Dr W and Associate Professor R within seven days of publication and each is hereby granted leave to use it in any proceedings arising out of any complaint made about him or her arising from his or her appointment as a expert in these proceedings.
7. Costs are reserved for one month.
IT IS NOTED that publication of this judgment under the pseudonym Michael & Lodders is approved pursuant to s 121 (9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYF 3003 of 2005

MS MICHAEL
Applicant
And

MR LODDERS
Respondent
REASONS FOR JUDGMENT

The applicant mother originally sought that the parties’ daughter, born in May 2003, reside with her and have contact with the respondent father each Saturday between 9am and 5pm and on alternate Sundays from 9am to 5pm. She also sought orders restraining the husband from stalking or harassing her, and other supposedly apprehended activities which could intimidate her.
In his original response, the father asked that the child live with him and that the mother have supervised contact to take place at the Central West Contact Service, Harris Park. He also sought an order that there be joint responsibility for decisions concerning the child’s care, welfare and development.
The matter commenced in May 2005 and the father filed his response in June of that year. Much of the delay in hearing this matter was because, initially, Dr W prepared an expert report on the child’s welfare. The mother or one of her parents made a complaint about Dr W to the authority responsible for supervising the behaviour of medical practitioners. Dr W did not thereafter wish to further involve himself in the matter. The result is that Associate Professer R, who replaced him, was not instructed until 5 February 2007 and provided a report dated 18 May 2007.
4.   Before Dr R saw the parties, the mother filed an amended application for final orders on 1 September 2006. In it, she does not ask that the child reside with her. She accepts that the child should live with the father and seeks that she spend time with her on alternate weekends from Friday evening until Sunday evening, extending to Monday evening on long weekends, for blocks of half of each school holiday period and on special days. She asks that, for the purposes of such contact, changeovers be at W Railway Station. She also seeks weekly telephone contact, school reports and information, medical notifications, a mutual non-denigration order and agrees that there should be shared parental responsibility.
5.   The father was born in North America in 1971. The mother was born in Australia in 1976. They commenced living together nearly two years before the child was born. They separated for the last time on 15 April 2005. The mother left the parties’ home without taking the child. The mother then spent time with the child on 20 April 2005 by arrangement with the father, but did not return her at the prearranged time. The father was unable to locate her but, on 17 May 2005, the mother, who provided an address in P, a suburb in Sydney, filed an initiating application. On 27 May 2005, the father, who remained unable to locate the mother, filed an interim application for residence. He obtained an order for substituted service. The wife had by then travelled to Western Australia with the child. By 29 May she had returned to Sydney. A hearing ultimately took place on 20 July 2005 and was defended. Registrar Messner made orders that the hcild live with the father and have contact with the maternal grandmother for two, eight hour periods each week. The maternal grandmother had made an oral application for contact at the hearing. The registrar permitted the mother to be present during the grandmother’s contact but did not grant the mother any right or impose any obligation to have contact.
6.   On 3 May 2006, Judicial Registrar Johnston made consent orders which are significant. They retained the situation where the maternal grandmother, who was not a party, retained contact rights and the mother was merely permitted to attend her mother’s contact with the child. However, the contact regime was changed to a cycle of periods of eight hours each on three Sundays in every four and weekly telephone contact. Importantly, the face to face contact became conditional on the mother meeting the following requirements:
“a) forthwith attend upon a referred psychiatrist and provide a full history of mental illness and continue to attend upon that psychiatrist and comply with treatment as directed by the said psychiatrist; and,
b) provide the name and business address of the said psychiatrist to the Child Representative and giving [sic] any necessary authority to the psychiatrist to enable him or her to notify the Child Representative and the father’s solicitors if the mother ceases to comply with treatment as directed by the said psychiatrist.
The orders also gave the Child Representative leave to provide the psychiatrist with relevant documents, including Dr W’s report. It is also of consequence that one of the orders which was made permitted the maternal grandmother to be present at contact changeovers but restrained her from getting out of her car during them. The changeovers were to be at the father’s home in the Blue Mountain region. Both the mother and her mother were restrained from taking the child to a medical practitioner except in an emergency. These orders were still in force when the final hearing commenced in late 2007.
7.   Of the approximately 48 weekends when the mother could have exercised contact with the child between May 2006 and when the father swore his affidavit on 5 September 2007, the mother has only seen the child 18 times. On many of her visits the mother did not avail herself of most of the time she could spend with the child. She only stayed until after lunch. Contact was to take place between 9am and 5pm. Since October 2006, with one exception, the mother has not been with the grandmother when the child has been returned to the father’s home. The mother has, at times, telephoned the father to provide excuses for her failure to exercise contact. She said she had to work or that she felt sick. The father does not claim that the mother has been other than diligent in exercising telephone contact.
8.   In order to put this matter into its proper context, it is necessary to say something about the father and his situation, especially about my impression of him and his partner, Ms K. Both are self-employed, the father as a tradesman and Ms K in her own shop. The father earns a good living and the couple own their home in the Blue Mountains. The father’s family of origin live in North America.. He travels to North America on average every second year to visit them. His mother has twice visited him and the child in Australia since the child’s birth. The father and Ms K have a daughter, L, who was born in about April 2007. L and the subject child share a bedroom.
9.   I have had ample opportunity to asses the father and Ms K. The overwhelming impression they make is of people who seem quite out of place in the courtroom. By that I mean that they are quite able but unexceptional, pleasant, unaggressive, balanced people who have no difficulty distinguishing their children’s needs from their own wishes and needs, who do not wish to be involved in litigation. They, however, are prepared to do whatever is necessary to best promote the child’s welfare. I use “unexceptional” to emphasise good character. Neither display any animosity towards the mother. Both the father and Ms K are able to speak to the mother without difficulty. I regard the father as an excellent father to the child. I do not have any concerns, from my observations, that he is other than a dutiful and loving parent. It is enough to say of Ms K that she appears to be an ideal surrogate mother for the child. While not attempting to undermine the mother’s image in the child’s eyes and being mindful of her place in the child’s life, Ms K is quite committed to helping the father to raise the child as part of their family and to ensure that the child has all the advantages her own daughter will have from the stable, balanced and happy household she has helped create. While neither the father nor Ms K are beyond criticism, they warrant none. It is not often that I feel so satisfied that a child who I have the responsibility to advance by orders of the Court will be as well cared for by a party to proceedings and that party’s spouse. I should also add that rarely have I been as confident as I am in these proceedings that a party has been so candid, straightforward and unmanipulative in the nature of the case presented and relied upon and the evidence in support of it as I have about the father. I regard the father and Ms K as truthful witnesses. Their essential strength as parents is able to be summarised in a word; ‘balanced’. Alternatively the word could be ‘normal’.

10. The real case presented by the father is that the mother should only spend time with the child if it is adequately supervised. He relies on the mother’s psychiatric status and psychological condition to support this stance. His essential wish is for the supervision to be by himself and/or Ms K, with the extent of the time spent to be limited by the practicalities of the situations in which he and the mother find themselves. He offers supervision at the Central West Contact Service as an alternative which he recognises as impractical and unable to be continued for the time he says supervision should be kept as a condition of contact. He opposes the maternal grandmother continuing as a supervisor because he claims she does not accept; more correctly refuses to recognize, that the mother has an psychiatric condition and beliefs which pose a risk to the child’s mental health and physical safety. He also opposes her supervision because she is said to be exceptionally antagonistic toward him and deliberately conveys her image of him to the child. He regards contact for one day per month as appropriate because it recognises the reality of what is likely to occur, given recent experience. He asks that provision be made for him to have special days with the child.

11. The mother, who I have had ample opportunity to assess because she not only gave oral evidence but at times conducted her case without the benefit of legal representative, appears, despite what she says and some aspects of her case, to be non-aggressive with very little, if any, animosity toward the father or Ms K. She appears at first to be thoughtful, pleasant and essentially a decent person. For reasons which will become apparent, there appears to be a bizarre paradox in her presentation when it is compared with aspects of her case and in her wish to spend time with the child. Any love and closeness she might feel for her when compared with some of the facts also involve conceptual difficulties. I have some trouble in understanding her reasons for her application and the wish she might have to spend any time with the child, although I believe the mother has, during the hearing, partially explained her motivation. There are some elements of it which she has not explained.

12. The matters relevant to the mother’s parental capacity commenced well before she met the father. The mother had a disjointed life as a child because her father was in the military and had relatively short term postings in various locations. At one stage he was seconded to the United States military and she lived with her family in the United States for two years. She returned to Australia when she was about 15. Her family remained in the United States. She was sent to boarding school in Sydney but was expelled after a short time for smoking marijuana. In early 1990, her family came to live in Canberra and she moved to live with them. She had failed year 10 and was truanting and using marijuana.

13. On 23 March 1993 she was admitted to Canberra’s Woden Valley Hospital, Psychiatric Unit and was diagnosed with acute psychosis. She had already been an outpatient at the hospital’s Child and Adolescent Unit for behavioral problems. She had been hearing voices for years, believed people could read her thoughts and that she was receiving messages via television and radio. She told her doctor at Woden Valley Hospital that she had been truanting and abusing alcohol and marijuana after a personal disappointment. Before that, she had been an excellent student. She remained in hospital for 10 days and was discharged on medication with a final diagnosis of acute psychosis and a differential diagnosis of schizophrenic psychosis. She was only 16 at the time. She was filthy on admission, had been living in a squat and had lacerated wrists despite appearing to have no suicidal ideation. She also had no insight.

14. Only three weeks later she was readmitted to the same hospital; on 26 April 1993. She had not been back to school, except for one day, and had returned to the squat. She had smoked a lot of marijuana but had been bought home by her family a few days earlier then had taken a large overdose of the medication she had been prescribed. As will be seen later, it is significant that she was brought to the hospital by her mother. The mother told the hospital that the overdose she had taken was a suicide attempt and said she had left home again because her parents were fighting. Her mental status was much as it had been on the previous admission. The seriousness of her condition is demonstrated by the fact that she was held in hospital against her will for six weeks or more as a result of a treatment order. On a page from a diary which is in the hospital records, she appears to have written on 26 April 1993 “Happy are the dead”. She admitted to having taken L.S.D before this admission and before her last admission. Her medication was continued on her discharge, but it was administered in a manner which would not permit its abuse.

15. The mother was next admitted to Woden Valley Hospital on 29 August 1993. Her mother brought her to the accident and emergency department because she was suicidal. She had superficially cut her wrist two days earlier and had thought of hanging herself in the past few months. She was referred to the psychiatric unit crisis team and admitted on 2 September 1993. She reported difficulty in relating to her parents, especially her father. She was discharged after three days. At the time of the discharge her mother accompanied her when she saw her doctors. Before her admission, her mother had accompanied her when she attended the outpatient’s department of the psychiatric unit.

16. It was not long before the mother was back in the same hospital. On 10 October 1993, she again was brought to the hospital by her mother after cutting her wrists superficially.

17. On 19 April 1994 she was admitted after slashing both wrists. One needed stitches, the other needed tendon repair. The doctor who sent her to hospital stated the obvious; that her actions were suicide attempts. She was discharged on 21 April 1994. A few days before this admission she had been taken to the hospital by police who had seen her behaving irrationally after having been evicted from a nightclub. While at the hospital, she was seen to be banging her head against a glass window. She was reported to have said it was because she could not stand the “pain” and had been quite teary. She was also covered in bruises which she attributed to being thrown about in the back of the police wagon. She was discharged on 12 April.

18. In April 1995, the mother arrived at the hospital claiming to be feeling strange after drinking alcohol and smoking cigarettes. From what she said on arrival it seems that she was still hearing voices, but she denied suicidal thoughts. Although the crisis team recommended admission, it contacted the mother’s mother and she collected the mother and took her home. Only two days later the mother was back at the hospital having been brought in by police. They had noticed her irrational behaviour after she was again evicted from a nightclub. When asked if she knew why she had been brought to the hospital, she said it was because she had “killed a dog seven years ago for moral reasons”. She continued to behave irrationally at the hospital.

19. The next episode of bizarre behaviour is recorded by Woden Valley Hospital on 27 March 1996. This time her mother reported her to a social worker because of her conduct. The history in the hospital records is that it had been going on for the past five days, however the mother gave a history of being admitted to Sutherland Hospital on the outskirts of Sydney five weeks earlier and remaining an outpatient for four weeks. Sutherland hospital has a psychiatric unit. The mother’s treating psychiatrist wanted her to be admitted to Woden Valley Hospital but the mother refused.

20. On 19 July 1996 the mother was again brought to the hospital by her mother. This time she was acutely manic but not considered dangerous to herself or others. She was discharged in her mother’s care.

21. The mother seems to have then had a period of better mental health if the Court’s knowledge of her psychiatric admissions to hospital is any guide. It may not be. However, she must have continued prescription psychoactive drug treatment because by October 1997 she had been having endocrine problems associated with the use of such treatment and for the whole of the preceding year. It is worthy of comment that she attended the doctor with her mother who expressed concern for her daughter’s welfare. It is also worth noting that the history the mother gave to the endocrinologist who treated her included a period of anorexia which is not detailed in any records before the Court. It is highly likely that the medical and hospital records available to the father and the child’s representative are quite incomplete, so the mother’s full history of mental illness cannot be known to the Court. It is likely to be better known to the mother and her parents, especially her mother.

22. My reason for recording the above hospitalisation history is not limited to presenting the mother’s psychiatric background. Important considerations in these proceedings are whether there is a need for supervision of any time the mother spends with the child and whether the mother’s mother and father are appropriate supervisors. The mother’s mother’s knowledge and beliefs of the mother’s condition, propensities and therefore history is relevant. So is what the mother’s father may have experienced and might be expected to know about the mother. One would expect the mother’s father to know nearly as much about the mother as the mother’s mother knows because he would have been told by her about the matters he did not have more immediate knowledge of.

23. The mother’s psychiatric history after she ceased attending Woden Valley Hospital in 1997 is quite sketchy. I am quite satisfied that it is incomplete. Dr J, a consultant psychiatrist, was qualified to provide an expert opinion on the mother by the mother’s solicitor at the time, Mr Fitzpatrick. Her opinion is dated 24 November 2005. For the purposes of providing it, Dr J had access to the subpoenaed material from Sutherland Hospital, Nepean Hospital and the Department of Community Services (DOCS), although not Woden Valley Hospital. In Dr J’s review of the mother’s history she notes that the mother had been admitted to Nepean Hospital in 1994 after an attempt at suicide. She said she was 17 years old at the time. This would have been in about 1993 or 1994.

24. Dr J also reported from documents in her possession that in February 1996, the mother was seen by a private psychiatrist and diagnosed as psychotic, possibly drug induced, possibly with early schizophrenia or psychotic depression. The next day the mother was involuntarily admitted to Sutherland Hospital and treated for schizophrenia. There is no indication of how long she was detained in hospital but, in January 1998, she was granted a disability support pension which ended when she was given the Newstart Allowance. She attempted to study with the aid of this allowance but, during 1998, her studies were interrupted by bouts of illness, presumably of a psychiatric nature. It is clear that she remained under the care of Sutherland Area Mental Health Services in 1998 and 1999. There is a record of the mother’s attendance at Sutherland Community Health Centre in 1999 when she was feeling suicidal and having auditory hallucinations.

25. The parties commenced living together in mid 2001. When the child was born in May 2003 the father and the mother lived in Western Sydney. They continued to live there until June 2004 when they moved to the Blue Mountains where they were living at the time of final separation. The place of residence is relevant because it can be compared with the mother’s choice of current address.

26. In about June or July 2004 the mother took the child to Melbourne during a temporary separation. She had not told the father or members of her family that she intended to do this. She drove there in a car which she owned. Until this time the father was in the habit of working long hours starting early in the morning and was often working so far away from home that he would have to stay away for much of the duration of the project at hand. The mother was the child’s principal carer. She had obtained part time work in January 2004 and after that left the child in child care for a day or two each week.

27. It took the mother about one month to reach Melbourne. It is highly likely that she and the child lived in the car for the whole time. During this time the father tried daily, and failed, to contact the mother via her mobile telephone. He had no idea where she was.

28. In late July 2004 he was able to contact the mother who was, by then, in Melbourne. He arranged to take leave from his employment and flew to Melbourne to be reunited with the mother and the child. He discovered, when he saw her car, that its interior was filthy. It was strewn with rotting food scraps, dirty nappies, dirty dishes and saucepans. The back seat smelt of rotting food. He cleared the car. The rubbish within it completely filled a public rubbish bin in the caravan park where the family had spent the night.

29. The parties then travelled to Mt. Hotham. After they had been there for about a week the mother said something to the father which is the first sign she gave him of the essential basis for his opposition to unsupervised contact. She said:

“ I think this baby is not mine. I think that the baby was swapped with another baby and that you are responsible for it. You knew what happened and you did not want to tell me. This is not my baby. You put [the child] in my care and asked me to look after a baby that is not mine.”

I do not have any doubt that these words, or something with the same meaning, were said. Not only was it not denied, the mother still holds similar beliefs. I shall return to the evidence of this. Although this seems to be the first time the father had heard anything like this, it was not the first time the mother had expressed this view. Dr J, in her report, related that, on 24 October 2003, the mother was referred to a Dr W. The mother had told him that the child was not her baby but had been substituted by resort to an illegal adoption.
30. The father returned to Sydney alone after some conflict between the parties. He left not long after the mother told the father of her belief that the child was substituted for her own baby. However, the mother returned to the father with the child about two days later. They resumed living in the Blue Mountains. Within in a short time the mother again told the father that she believed the child was not her baby and that she had been swapped by the father for her actual baby. She also accused the father of being a “child murderer” and a paedophile and a member of “a cult that swaps babies”. The mother continued to make similar allegations for the next two days.

31. The father was concerned about the mother and wanted to ensure that she obtained appropriate help. The parties arranged for the mother to attend S Family Care Centre. While engaged in an intake interview, she said:
“ I think that [the child] is not my baby and that she was swapped at the hospital. I have been looking after a different baby. I was not responsible for the swap or aware of the swap”
and:
“ While I was driving towards Bathurst I saw red buddies the size of a baby left on the side of the road when it was dark. They looked like babies“.

I do not know what is meant by “red buddies”. From the context she may have actually said “dead bodies” but I shall not assume she did. She may also have indicated the babies were dead, if the conversation which then took place between the father and the interviewer is any guide. The interviewer pointed out that the institution was designed to help mothers with postnatal depression rather than frank mental illness. She recommended that the mother attend an institute where more suitable help was available and informed the parties she would have to report the situation to DOCS.
32. DOCS contacted the parties on 13 August 2004. The parties saw an officer the same day. Both were advised that the mother needed help for her mental illness and the officer made an immediate appointment for the mother to attend the Blue Mountain region’s Mental Health Unit. The mother refused to keep the appointment but, instead, drove to a suburban Sydney Medical Centre where the family saw a Dr F. This doctor must have contacted DOCS because DOCS then required that the mother be referred to Nepean Hospital where she was taken forthwith with the assistance of the police. The treatment the mother received could not have been of much benefit to her. After separation, the father found a copy of a letter which appears to be a complaint to someone in authority. It is from the mother and dated 23 September 2004. Inter alia, it alleges unspecified corruption by the father and his involvement in “a child sexual abuse cult”.

33. The mother, after being escorted to Nepean Hospital by police, was admitted to the mental health unit where she remained until 15 August 2004. She was discharged and given a follow-up appointment with the Area Health Service by her then treating doctor. In a ridiculous but typical application of a so called ‘right to privacy’ in which political correctness supplanted good judgment, the doctor refused to tell the father when the appointment was, so he could not ensure her attendance.

34. Thereafter, the mother appeared to be much better. The child commenced child care on three weekdays each week and the father resumed his employment, working away from home during the week at first. In October 2004, the mother returned to employment working as a nurse. She worked two to four days each week. The father enquired about the follow-up treatment she should have had but the mother was evasive and said she had been advised by a doctor to take a herbal “medicine”. The father was inclined to be satisfied by this course. His mother had been a believer in alternate medicine and it seemed acceptable to him.. In November, the mother limited her paid employment to weekends when the father was available to care for the child.

35. Records were available to Dr J which allowed her to fill in, to some extent, the gaps in the mother’s psychiatric history after the parties commenced living together. When the mother was taken to Nepean Hospital by police and admitted as mentally disturbed, the hospital notes mentioned her delusional belief that the child is not her baby and her continuous hallucinations. Nursing notes written on that day mention that the mother also claimed to have seen the dismembered bodies of babies at the side of the road. When, in November 2004, she attended the Area Health Service with the father, its officers seemed to believe the mother was suffering from postnatal depression but the father reported that she was caring for the child well. As had usually been the past situation, the mother was refusing to take the prescribed medication.

36. On 23 December 2004 the husband returned from work to find a visiting card from the Area Health Service on the dinner table. The mother and the child were not at home. They did not return that day and he could not contact them for about three weeks. The mother then told the father that the doctor who had referred her to the service as well as the person to whom she had been referred had come to the house on the day she disappeared. They were accompanied by the police. The mother seems to have believed they were part of a plot to take the child from her. The mother had gone to stay at her Aunt’s house, about three hours from the Blue Mountains, to avoid the consequences she imagined might result from being found by the health service. It seems clear that the official visit was a delayed overreaction caused by lack of staff and the fact that the mother had not kept her appointment if it was not because the health service knew or believed something about the mother’s condition which caused grave concern. I do not know which it was because the material before the Court is lacking.

37. The father was, the next day, able to speak to someone at the health service office. He was given a full explanation about the seriousness of the mother’s condition and the fact that the child was felt to be at risk. Until the visit to the S Family Centre in August, the father had believed that the mother’s problems were caused by postnatal depression. This is despite the fact that five years earlier the mother’s grandmother had informed the father that the mother had schizophrenia and needed medication. He had not fully appreciated what schizophrenia was or its symptoms. Despite the advice the health care worker gave him, by 24 December he still did not fully appreciate the situation.

38. The mother returned home from her aunt’s house a day or two after being located. The father then ensured that he remained with the mother and the child as much as possible. After the Christmas holiday period was over, he ceased working away from home and ensured that he returned home from work each evening. The mother appeared to be in better health and told the father she had consulted a psychiatrist who had recommended a regime. The regime she described to the father amounted to no more than quackery. However, the father did not fully understand this.

39. In mid March 2005 the father had a conversation with a work colleague. He made the father understand the ramifications of schizophrenia. Although he had always been concerned about the mother’s condition, he had not understood that the mother needed proper medication for schizophrenia. He was aware that the mother had not been taking any prescription medication during their relationship, so became concerned for the first time that she needed to take medication to control the schizophrenia and about the impact of her failure to do so on her ability to care for the child. The father asked the mother’s mother about the mother. The conversation is of importance in understanding the grandmother’s current attitude, claims and presentation at Court. These relate to her suitability as a contact supervisor. It is:
I said: “Can you tell me about [the mother’s] past? Was [the mother diagnosed with schizophrenia?”
[The grandmother] said: “I don’t know. I don’t want to talk about it. I was told by a specialist in Canberra that she was suffering from psychotic depression”.
I said:“[The mother] said that she did heavy drugs when she was a teenager?”
[The grandmother] said: “The drugs? Maybe thirteen years old. I don’t know”.

If the grandmother’s evidence and presentation in Court are a guide, her response was an attempt to evade the truth. Her many attendances at hospital with her daughter were more than sufficient to inform her that her daughter had a lengthy history of serious mental illness. Her response to the father tended to undermine his ability to decide how to react to his newfound appreciation that the mother might need treatment and to ensure she received it.
40. On 14 April 2005, the mother telephoned the father while he was at work and told him she had had an argument with neighbours because she believed the neighbours were going to steal the child. The father went straight home. He tried to calm the mother but she acted and spoke irrationally at times and accused the father of attempting to harm her and of preferring other women. She threw objects, including the baby’s pram. She then ran to the car and commenced to do “burn outs” on the gravel driveway of the house. The father was holding the child, but this did not stop the mother from driving at them and suddenly applying the brakes. The mother then got out of the car and pushed the father, who was holding the child. The father threatened to call the police, but the mother followed him to the house and pushed him from behind causing him to fall forwards. He was still holding the child and they narrowly avoided colliding with a drainpipe. The father then slapped the mother on the cheek with an open hand. He said he did this to get the mother to stop pushing him and to protect the child. I believe him. After another irrational act, the mother left. The father then telephoned the mother’s mother and asked her to come and stay, which she did. The father then collected the mother from a local supermarket. The next day the mother left home without the child and did not return until three days later and then for only a short time. By this time, the mother’s mother was no longer staying at the parties’ home and the father commenced caring for the child with the help of a babysitter when he was at work.

41. I am quite satisfied that, despite the mother’s complaints of a history of violence, the only time the father has assaulted or intimidated or attempted to assault or intimidate the mother was when he slapped her on 14 April 2005 in circumstances where his actions, if not wholly excusable, are quite understandable and do not indicate that he is a person of violent disposition. The incident demonstrates the mother’s greater propensity for violence.

42. On 20 April the father had arranged for the parties’ usual babysitter to care for the child. The mother telephoned the father and requested that he permit her to take the child to her playgroup for a short time. He agreed, then went to work leaving the child with the babysitter. When he returned he discovered that the mother had collected the child but had not returned her as she had promised. The father did not then see the child until her primary care was granted to him as a result of orders of this Court made on 20 July 2005. In the meantime, the father was unable to find the mother and, more importantly, see the child.

43. On 29 April 2005 one DOCS officer admitted that DOCS had seen the child and were in contact with the mother. But when the father asked where the child was, the officer refused to tell the father and when the father complained that DOCS knew the mother to be mentally ill and schizophrenic, the DOCS officer hung up on him.

44. Although it is clear that at times DOCS knew and the mother’s parents are likely to have known where the child was, they obstructed the father in his efforts to find her. In doing so in circumstances that they all knew about the mother’s condition, they failed to do what they should have done to protect the child’s welfare. That DOCS failed in this basic duty to the child is a matter of great concern about its ability to protect children who need protection. It seems to have abandoned its essential duty, possibly for the sake of political correctness. That the mother failed to make a proper effort to spend time with the child after residence was awarded to the father in the interim and is now not seeking residence, is a testament to the fact that the mother’s parents and DOCS did not provide properly for the welfare of this child and cannot be expected to do so in the future. Their agendas, which do not place her welfare to the fore, prevent this. I shall explain what I mean by providing more detail.

45. DOCS knew that the mother was schizophrenic and psychotic and believed that the child was not hers. It should have acted on the fact that people with the mother’s condition, history and expressed delusions like those of the mother, pose a risk to the welfare of their children, both physical and psychological. I do not know why it failed to tell the father of the mother’s whereabouts. Possibly it was because the mother complained, as she has to the Court, that the father had been violent to her on many occasions. If her complaints were true, the child would still have been safer with the father than with the mother. A little investigation and thought by DOCS officers would have made it clear to it that these allegations were unlikely to be true in any event. All DOCS needed to do was interview the father, ask the mother to provide details rather than vague assertions and it would have been obvious that these allegations of assault were no more than a distraction to provision of proper arrangements for the child’s care. If it was not the assault allegations which prompted DOCS to refuse to disclose the child’s whereabouts, I cannot understand what its motivation was. Whatever it was, it was based on inappropriate lack of investigation, inadequate protocols and incompetence. It is not an excuse or an answer to my criticism of DOCS that it is overworked, undermanned and underfunded. These are simply reasons why criticism should be made.

46. DOCS, at least, should have acted to ensure the child saw her father regularly in case she should have to live with him rather than the mother. Nevertheless, it would have been more appropriate to return the child to the father’s primary care rather than leave her in the care of a person who it knows was psychotic and had delusions about the child not being her own child, had a history of schizophrenic mental illness and a refusal to take medication, accept treatment and supervision and has made suicide attempts.

47. After the parties separated, the mother went to live in P in Sydney for a while. DOCS saw the child during this time and apparently reported the mother was caring for her well and that the child was happy. Yet eventually DOCS must have realised the risks involved in leaving the child in the mother’s care. It still failed to take the obvious course; resort to the father for her care. On 23 May 2005, both DOCS and the police came to the mother’s house and broke down the door. The child was then placed under the care and protection of the Director General of DOCS pursuant to s. 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The order for removal from the mother states “mother suffering from untreated schizophrenia…..in need of mental health assessment to ascertain her ability to provide care and protection. Delusions that [the child] is not the natural child. Fingerprints her twice a day”.

The last statement, to the effect that the mother was taking the child’s fingerprints, must be about the mother’s attempts to ensure she was not swapped again or to determine if and when she had been swapped. If DOCS did not fully understand the risk to the child for as long as she remained in the Mother’s care at the time when it refused to tell the father where the child was, it understood by the time it got the section 43(1) order and should then have sent the child to live with the father. Presumably, because I have not been told otherwise, the protection order is no longer in force.

48. One of the mysteries this case has for me is what happened after the child was placed in care. I do not know who actually cared for her. The evidence is quite silent on his. All I know is that the mother went to Perth and must have returned by 7 June 2005 when the father’s application for residence first came before the Court. It was then that he first gained the right to have the child live with him. One can only speculate on whether, in the interim between the s. 43 order and the hearing, the child was with the mother, her mother, or foster parents. DOCS should have paid more attention to the father on the issue of her welfare but, typically in my experience, failed to heed him or give him the opportunity to care for the child.

49. On 24 May 2005, the mother’s mother erroneously accused the father of getting DOCS involved. She resented him for this. The father did nothing more about seeing the child except commence interim proceedings for that purpose. He then, rightly, awaited the decision of the Court. The mother’s mother’s resentment about the involvement of DOCS is a clear indication of her failure to give proper weight to the risk posed to the child as a result of the mother’s condition. DOCS was not relieved of its duty to protect the child because Family Court proceedings had already commenced. It was in as good a position to act appropriately as Registrar Messner was when she heard the matter in late July 2005.

50. Since the child has been placed in the father’s principal care he has done nothing to obstruct compliance with the orders and the spirit of the orders which would have allowed the mother to spend time with the child. He readily changed the day appointed for such contact to suit the mother’s convenience. The mother has not been as accommodating towards him. On at least one occasion, the mother and her mother refused to return the child to the father’s home because Ms K was present and the father was not. The mother’s mother seemed to believe it would be better for the child to be taken to a police station and to the have the father involved with the police than to give the child to the person who the mother now accepts is suited to be the child’s surrogate mother. She acted quite inappropriately but in accord with her misguided belief.

51. By May 2006, the child had, on a number of occasions, told him at the end of contact “My mummy and my nanny hate you”. Having had the opportunity to form an opinion about the mother’s mother, I am of the view that this statement is true about her, although I am not of the same view about the mother’s attitude to the father. I accept the truth of the father’s evidence on this aspect and conclude that, most probably, the child’s comments were the result of something the mother’s mother has said to the child. The mother would not have said it if she does not hate the father. The father now refuses to speak to the mother’s mother. I am satisfied that he dislikes her because he is quite aware of her attitude to him. I am satisfied that the formation of her attitude to him preceded the development of his dislike for her.

52. Dr J’s notes indicate that, on 28 August 2005, the mother, accompanied by her mother, presented at St. Vincent’s Hospital with suicidal thoughts. She was assessed the next evening by Dr H as possibly having Borderline Personality Disorder. She remained at the hospital for more than 24 hours before being discharged because she had improved.

53. In September 2005, Dr W interviewed the mother, the father and the maternal grandmother. His report is in evidence. He read the court documents which had been filed up to that time. He was not available for cross examination before me, so the evidence comprising his report must be seen as having the inherent weakness that all untested evidence has when the party who may have wished to dispute it was not given that opportunity. That does not mean it cannot have weight, although it has less weight than it might have had if it had been fully tested and had passed the test.

54. I regard Dr W’s description of the father as significant. He found him to be “well presented”, “candid”, “direct”, “warm flexible and understanding in his general manner” with “no evidence of psychiatric illness or personality disorder” and no appearance of being “restless, distractible or impulsive” He was experienced as speaking “in quite warm terms” about the mother. I find his assessment of the father to be convincing, not only because it accords with my own independently reached assessment of him. Dr W is very well qualified and experienced in a relevant way and his opinion, although untested, has great weight. Dr W found the father to interact with the child in a manner which is appropriate for one who has her primary care.

55. In the mother’s interview with Dr W she told him that when DOCS broke into her home in May 2005 it was apparently satisfied that the child was fine. She did not suggest that the child was removed from her care. She may not have been. She also told him, in an evasive and oblique way, about her fear that the child had been substituted at birth. She seemed to think the father was involved because she had wondered whether the substituted baby was the father’s child with another person. She also told Dr W she had no reason to believe that the child was not her child. She then went on to elaborate on what could only be the result of believing the substitution had taken place. Consistently with the mother’s oral evidence before me, she nevertheless appeared to wish to provide the standard of care for the child which she would have provided if she had no doubt that she was always her daughter. She said she saw it as her duty to care for any child for whom she was given responsibility. This does not mean that there was no risk to the child by remaining in the mother’s care

56. One document which Dr W had access to is a handwritten letter which is annexed to the father’s earliest affidavit. It is written by the mother and records that she has taken steps to get advice about having the child’s DNA tested and her understanding that fingerprints could be used to “identify differences between identical twins”. She states that a doctor had advised that the child should “make many handprints in art work/baby journals”. She also mentions in this letter that she felt from the time the child was aged six months that she had been substituted. She seems to suspect that this had occurred at various child care establishments which the child had attended.

57. Dr W observed the child with the mother. His assessment is that the child was just as comfortable with the mother as she was with the father and that the mother’s approach to her care was like that of the father. There is no suggestion her physical care of the child was, when seen, inferior to that of the father. Dr W formed the view that the mother had abnormal ideas which were on the verge of crystallising into delusions.

58. Dr W’s report of his interview with the mother’s mother is revealing and helpful to me. It confirms my view that the mother’s mother is a very assertive, manipulative and deceptive person who is likely to be deliberately lying in her attempts to improve her daughter’s case. The most likely explanation for this is that she has been acting out of self-interest so she could have more access to the child.

59. At the hearing I formed the strong impression that the mother’s mother was either incapable of understanding, accepting and acting on the seriousness of the allegations and evidence about the extent of her daughter’s mental illness or was deliberately misstating and understating her own belief about it. She certainly deliberately understated her knowledge and experience of the mother’s condition. What she told Dr W moves me to find that she is highly likely to have given knowingly false evidence on the extent of the mother’s mental illness. The relevant part of Dr W’s report is:
“She indicated that she felt that she had not created a good impression with the Judicial Registrar at the hearing in July 2005, but she was of the view that she had been misunderstood, She referred to her many years of experience as [court staff] in State and Commonwealth jurisdictions and indicated that she had taken the Judge quite literally when she had been asked if she thought her daughter had a serious mental illness. She said that since she did not see her daughter’s mental state as being as serious as she had observed in serious matters in criminal jurisdictions for instance, she replied in the negative. She said that the Judicial Registrar formed the view from her responses that she had no insight (into her daughter’s mental state).”

60. The reason I regard this report as confirmation of an adverse view of her evidence is that, if the mother’s mother was so conscious of having been too literal in her responses to the Judicial Registrar and as a having only made an error of judgment in understating the extent of her daughter’s illness, she must have realised that she should not make the same mistake before me. Yet she was habitually evasive and understating in her evidence when asked questions designed to enlighten me on the extent of the mother’s mental illness. She behaved before me in a manner which made me feel, as I still feel, at the least, that her evidence was of much the same character as she explained the Judicial Registrar had found it to be. Further, she defeated the excuse she made to Dr W by immediately reacting to his questions about the mother evasively. Of this Dr W reported:
“This being the case, I tried to ascertain what [the mother’s mother’s] views were as to her daughter’s mental state and if relevant, the severity. However I had a great deal of difficulty initially clarifying precisely what her views were about this, On one hand she seemed to be trying to be very careful about what was said (apparently fearing that it may have some prejudicial effect on her daughter’s case) and on the other hand there were times when she seemed to be quite evasive. I experienced most difficulty ascertaining the degree of perceived mental impairment now and at the times of hospitalisations. Each time I returned to this issue, [the mother’s mother] seemed to want to provide reasons for changes in her daughter rather than address the question of degree of impairment.”

61. I conclude that the mother’s mother deliberately treated Dr W and the Court when I heard the matter, in the way she said she had inadvertently treated the Court when the Judicial Registrar heard the matter. Her explanation to Dr W was extremely manipulative, deceptive and dishonest. That the mother’s mother adopted these tactics indicates that she does not appreciate the seriousness of her daughter’s condition as it relates to the child’s welfare or does not care to do what is necessary to ensure the child is physically and emotionally protected from the potential dangers that a delusional parent presents. It is particularly germane that when Dr W asked the maternal grandmother if she had ever been concerned about her daughter’s mental state she “seemed particularly keen not to answer this question”. The answer she eventually gave indicates the danger of allowing the mother’s mother to supervise any contact between the mother and the child. It was to the effect that she did not believe anything was wrong with the mother and that she did not believe contact required supervision.

62. Dr W concluded that the mother probably suffered from schizophrenia and that the prognosis was “guarded” with the likelihood of relapses of similar intensity and frequency as she had already experienced. He said she would benefit from treatment of anti-psychotics and supervision. In relation to the child’s welfare, he stated his opinion in these words: “…of more concern (about the threats of parenting) is the extent to which the child is involved in the parents abnormal thinking….in this case it is clear that [the mother's] delusions have centrally involved her child to the extent and that she has had periods when she has been uncertain whether she has been looking at her own child or not. There is no evidence that this has led to her rejecting the child that she believes she has, however such delusions are of concern in their more extreme form, they can lead to rejection of the child and even attacks upon the child. The risk of this is perhaps heightened in this case because [the mother] seems to have fled the state on many occasions in the past 18 months, albeit with her daughter. The point that I am making though is that impulsive actions such as this could be directed toward her daughter and she appears to have proclivity to this”. I have underlined parts of this quote because of their importance.

63. On 11 May 2006 a consultant psychiatrist, Dr V, provided a medico-legal report at the request of solicitors then acting for the mother. The solicitors were not acting in the Family Law proceedings. They were concerned with her ability to work as a nurse. The reason the mother gave for seeking the report is convoluted and peculiar. However, of greater interest is the fact that the mother virtually completely failed to be candid about her psychiatric history. She admitted to having been seen by one psychiatrist previously; Dr W, for a Court ordered report, and said he supported the father because the father had a better work history. She denied prior suicidal ideation, psychiatrically related hospitalisations or other psychiatric history. She also denied ever using illicit drugs and said she didn’t drink alcohol although it was a feature of all, or nearly all, of all her earliest psychiatrically related incidents that they had been caused by it, or involved the use of illicit drugs and/or alcohol. She said the father ended up with custody because she had received bad advice from legal aid solicitors. She attributed DOCS involvement to assaults on her by the father. The opinions expressed by Dr V, who appears to have done nothing to check the veracity of the history the mother gave him, is a testament to the unadvisedness of accepting without question the opinions of single experts qualified by persons who have an overt or covert agenda. Dr V’s opinions are so likely to be wrong and are based on such inaccurate material that they are not worthy of stating. Dr V could have sought authority to obtain and could have obtained a copy of Dr W’s report. A refusal by the mother to provide it would have alerted him that something was amiss. The report has some value though. It is clear from it that the mother, like her mother, is prepared to be manipulative, deceptive and to lie to achieve her ends.
64. Dr R reported on 18 May 2007 after having perused many documents, including some which are not in evidence before me. However, because she, like Dr J, states such of the contents of documents as she has relied on or considered and because the rules of evidence are relaxed in children’s cases, I do not regard reliance on documents I have not seen as, in itself, a reason to necessarily downgrade the force of Dr R’s opinions.

65. Dr R has carefully recorded all the material and its contents which she appears to regard as relevant. One matter she mentioned is worth repeating here because it is relevant to the issue of supervision. It is a record from the DOCS file which is not otherwise available to me. It is to the effect that in May 2005, when a DOCS officer spoke to the maternal grandparents because it was endeavouring to locate the mother and the child, the officer was informed by the grandparents they did not know where she was. At least one of them said, if they had known where she was, he or she would not reveal her whereabouts to DOCS. Given that, whichever of the maternal grandparents spoke to the DOCS officer, he or she must have known that DOCS was concerned to establish that the child was safe and in good hands in circumstances that the mother had had a history of many years of significant psychiatric behaviour and behavioural problems, including delusions and a need for self harm, it was extremely irresponsible of him or her to take the stance he or she took; a stance which had the potential to put the child in harms way.

66. The intention to defy authority does not engender confidence in the Court about that grandparent’s reliability as contact supervisors. It is a pity I do not know which grandparent said this. In the absence of that knowledge, it adds to the risk inherent in having either as a supervisor. My own observations of both the maternal grandmother and maternal grandfather leave me with little doubt that each will not in future, if given the opportunity to supervise contact, disclose to any authority, despite promising to do so or being ordered by the Court to do so, any incident or situation which ought to alarm a person of ordinary sensibilities and cause him or her concern about the child’s emotional welfare and/or physical safety.

67. Dr R observed the father with the child. Although this aspect is of little importance because he will be her primary carer in any event, it is gratifying in view of this that Dr R regarded it as “obvious” that “they have a very warm and affectionate relationship” and that the husband also handled his new baby L “in the way of an experienced and competent parent” while the child “continued playing very happily”. Dr R noticed that both “[the child] and the baby were very settled”. In both the father’s, Ms K’s and their baby’s presence, the child was also seen to be “relaxed and at ease and confident”. She “related easily to both the father and Ms [K] and referenced them both appropriately and regularly”. Dr R said the child is bright, developing well and very sociable, confident and engaging and securely attached. These observations were made in April 2007, by which time Ms K had been living with the father and the child for less than nine months and the new baby was only about one month old. Dr R’s opinion of the father and Ms K confirms my independently formed view that their parenting abilities are of a very high order, mainly because they are very well adjusted, calm, thoughtful and sensitive people.

68. Dr R was in little doubt about the mother’s psychological status. She said it was immediately apparent that the mother probably had some mental disturbance. Not only did Dr R have difficulty establishing any rapport with the mother, the mother’s expressed and delusional attitude towards the child was a matter she commented on in a manner which is adverse to her case. In speaking about her, the mother referred to the child in a manner which is typical of depersonalisation; calling the child “the child” rather than by name. Dr R also saw fit to comment on the mother’s claim that the father had been violent to her. She said of the mother:
“It had been difficult to get an established flow of history from [the mother] …, but once she mentioned domestic violence for the first time she then seemed to be quite repetitive about it, in a almost stereotypical way, and began answering most questions in terms of the domestic violence”.

And later, on the topic of alleged domestic violence:
“[The mother] seemed bland and there was very little detail. She looked to her mother for endorsement”

Before me, too, there was virtually no detail of the mother’s allegations in this respect against the father. My impression is that all her references to the father’s alleged violence were for tactical reasons and were not founded on fact. There is no credible evidence that the father has ever stalked or harassed the mother.
69. Dr R’s report of her observations has been extremely helpful in many ways. One instance is of some subtlety. It was more about the mother’s mother than the mother. The mother told Dr R that DOCS persecuted her at the father’s instigation and that the Family Court process, which resulted in the child living with the father, was biased against her to the extent that her own lawyer’s advice to her was the result of some type of conspiracy with the father’s counsel. Dr R must have regarded it as significant, and I certainly regard it so, that the maternal grandmother “agreed and endorsed” the mother’s account even though she must have known the mother was mentally ill and that the thrust of the father’s case, as expressed clearly to Registrar Messner by his counsel, was that the mother was mentally ill; suffered from schizophrenia, and needed treatment to the extent that she should have been hospitalised. The inference from Dr R is that the mother’s mother, too, is disturbed in that at least her perception of obvious events is skewed or she knowingly distorted the facts to assist in her daughter’s case irrespective of the child’s best interests. Dr R commented, about both the mother and her mother, that they were more interested in validating the mother’s position as against the father than in the child’s welfare.
70. During the consultation, Dr R saw both the mother and the grandmother together when obtaining the relevant history. She obviously asked about the mother’s health. She was told; it does not matter by whom because both the mother and grandmother were present and neither disputed it, that the mother was in good health, was seeing a psychiatrist, Dr S, once a month because she was “under orders” from her solicitor to do so and that Dr S had not prescribed any medication because he did not believe that the mother had any need for it.

71. Dr S’s report was made four months after Dr R’s interview with the mother and her mother, but his report, to some extent, supports what Dr R was told by the mother and her mother about Dr S’s view about the mother’s mental illness. Dr S recommended continuing psychiatric treatment or monitoring so his opinion cannot be regarded as wholly optimistic about the mother’s mental health.

72. When she was specifically asked about her history of psychiatric counselling or treatment, the mother was “notably evasive”. The mother was also noncommittal about her relationship with her father. Dr R asked about this because the child’s father had told Dr R that the wife had alleged her father had raped her when she was a teenager just before she moved back to Australia from the United States.

73. The maternal grandmother was observed by Dr R to be, like the mother, “evasive”. This evasiveness was related to the mother’s mental health. However, her report indicates the evasiveness also concerned her husband, who I have heard and seen in the witness box and observed in court. Dr R asked about her and her husband’s health. She said she was in good health and had never had any counselling or psychiatric treatment. Of her husband, who was not seen by Dr R, she volunteered that he was suffering from depression and was on medication for it. She offered an opinion which she must have known was false and must have intended to be misleading. Her opinion was that the depression was “under control” and was “probably related to the court case”, although she added that there were “other factors”. I shall return to the mother’s father’s condition.

74. Dr R also interviewed the mother while her mother was not present. Dr R regarded some of her answers to questions as demonstrating “obvious thought disorder of a psychiatric kind”. The mother was also quite duplicitous in answers to important questions Dr R asked which are to be compared to her evidence before me. I shall quote from Dr R’s report on page 41:
“Asked was it the case that she had ideas that [the child] wasn’t her baby, [the mother] said: ‘No, I didn’t have ideas, but because of his violence I did believe he wasn’t caring for her best interests’.
Asked was it not the case then that she had ideas that the baby had been swapped, [the mother] said: ‘I believed I was caring for her’. So she wasn’t swapped at birth? ‘No, not at birth. [The father] did take her out of the room but I didn’t think she was swapped at that stage but possibly he had had relationships with other people and I didn’t know the full level of his violence’.
Asked what did that mean about the baby being swapped, [the mother] said: ‘There were circumstances that I was looking after one child only and I believed that she changed, she had grown quickly, her weight had changed, I’ve got the records because [the father] would be violent towards me. I’d ask him what his objectives were, I had counselling at the time because he had been violent’.
Asked whether she had an issue with her father, [the mother] said ‘no’. Did she have an issue with him as a teenager? ‘It doesn’t relate to the circumstances now’.”.

Later she admitted to Dr R that when she was 15 “Dad assaulted me” but her complaint was limited to serious bruising.
75. When the mother’s mother was interviewed alone she was seen to be “very evasive” by Dr R. She, nevertheless, admitted that the mother had been said by a nurse to be suffering from schizophrenia and by a doctor to be suffering from psychosis when she was admitted to Sutherland Hospital; that the she was said to have suffered psychosis in Canberra and that she had been admitted to Nepean Hospital. But this information was given in a manner calculated to diminish its seriousness and significance to the child’s welfare. Dr R concluded that the mother’s mother was not merely evasive but that “her thought processes seemed disordered also”.

76. Dr R was in little doubt about the mother’s condition. She said: “At present it is clinically apparent that the mother has a psychiatric illness, most likely Chronic Paranoid Schizophrenia but possibly Chronic Schizoaffective Disorder”. The latter alternative is worse for her case than the former because it features the additional characteristic of “prominent mood disturbance…, in this case, episodes of mania”. Dr R also concluded that the mother “had to be pressed on the issue of baby swapping but it was clear that her thought processes became unstuck at that stage and she did not deny those ideas but seemed to justify them”.

77. Dr R made significant observations on the mother’s and grandmother’s interaction with the child. For short periods it appeared to be quite good, but each could not sustain her focus on her. The maternal grandmother was even less capable in this respect than the mother.

78. The mother’s level of parental responsibility is also the subject of Dr R’s opinion. It is that by her claim for contact of “once a month overnight” which she expressed to Dr R, and her failure to exercise regular contact, the mother was not demonstrating a responsible attitude because the level of contact she was having and wished to have was not enough to sustain an adequate relationship with the child. Dr R reports that in her opinion the mother “has little understanding of [the child’s] attachment and needs” and “is contributing little to [the child’s] development”.

79. Dr R also commented on the strange priorities and choices of the mother in the light of her formal claim to have significant contact with the child. The child lives in the Blue Mountain area. The mother has no car, yet she has chosen to live at the Coast, which is at least 3-4 hours, by public transport, away. Her expressed reason for this choice of location is that she likes to surf. That it makes contact travel, especially with the child, extremely impractical, inconvenient and a trial for the child, seems to lack any impact with the mother or, as Dr R put it, the mother’s “priorities…seem to have very little to do with the imperatives of sustaining an adequate relationship with a small child”. My impression is that the mother’s claim for contact is likely to have as much to do with the mother’s mother’s wish to spend time with her granddaughter as it does with her own wishes.

80. An important aspect of Dr R’s report is her strongly held opinion that the mother, despite attending Dr S, is in need of both “more adequate assessment and treatment than she is currently receiving” and antipsychotic medication. It follows and is clearly stated by Dr R, that she does not agree with Dr S’s opinion that there is no evidence of mental illness. Dr R seems to assume, and that assumption seems to have been confirmed by what the mother said of her attendances on Dr S, that these are “limited to quite brief reviews of her mental status”. The mother told Dr R, in effect, that she was only attending Dr S for tactical purposes in these proceedings. Dr R says the evidence of mental illness since the age of 16 is “incontrovertible” and notes that Dr J, in her report, concurs.

81. An aspect of Dr R’s opinion which impacts on the mother’s parental ability is that the mother is assessed as unlikely to have any appreciation of the link between her ability to parent the child and her need for treatment. Dr R makes the point that the mother is quite unlikely to co-operate in obtaining and maintaining suitable assessment and treatment and is not likely to be forced to have treatment because she is unlikely to be assessed as posing a risk of harm to the community or herself. Yet Dr R says that the mother is “not at all able to function as a parent because of mental illness”. It seems that the child, in Dr R’s experience of the public health system, would not qualify as a member of the community. The mother left me with the impression that she will not voluntarily undertake or attend treatment recommended by fully informed psychiatrists, but will search for and accept the advice which suits her, whether it is based on inadequate information because she is not candid and forthcoming about her history or because it is based on quackery.

82. Dr R, in her report, expressed considerable concern about the maternal grandmother. She says she cannot be relied on to act as a balance in the situation. Dr R has formed the view that the maternal grandmother has concealed the mother’s psychiatric history. Most important from the Court’s point of view are Dr R’s expressed opinions that the maternal grandmother “is not able to focus on the needs of the child” and “she would have difficulty prioritising the needs of the child over her need to deny or minimise [the mother’s] illness”. Dr R speculates that the maternal grandmother “might provide an adequate level of limited supervision in terms of making sure the child is not overly harmed but is much less likely to guard [the child] from psychological harm”. My own observation of her is that she has such a high level of loathing for the father and such poor insight and self-control that she is highly likely to deliberately attempt to undermine the father’s image in the child’s eyes. I am also of the view that the maternal grandmother is quite unlikely to insist that the mother not leave her presence while she is caring for the child under her supervision. I think it is nearly certain that if an alarming incident occurs or can be seen to have the potential to occur and the child might be at risk from the mother’s behaviour, the mother’s mother will attempt to conceal it and/or any risk from it, rather than disclose it to the father or DOCS or a mental health authority or to the police or the Court.

83. A point which Dr R makes raises considerable concern about the maternal grandfather. She questions why the maternal grandmother was so guarded about the mother’s claim that the maternal grandfather had abused her. She wonders, rhetorically, why if these claims are a product of, or exaggerated by, the mother’s mental illness, she was not more open about the mother’s allegation. The inference is that there is a possibility raised to significance, that the mother’s father had sexually abused her rather than had beaten her when she was a teenager. She speculates that this might be the initial cause of the mother’s mental illness.

84. I find Dr R’s written observations and opinions to be compelling both in themselves and because, as one who is not a medical expert, so far as I am able to form opinions about the mother’s mental health from my own observations and from the other evidence, I have independently come to regard the mother and her mother as disturbed. Having read the affidavits of the mother’s father and also seen and heard him and observed his lack of self-control, I find Dr R’s assessment that he might be a risk to the child because of his behaviour toward the mother a cause for concern. Nevertheless, Dr R’s opinion on this must be approached with caution because she did not interview the mother’s father.

85. Dr R gave some enlightening oral evidence. The evidence was given after she had been informed that it was likely that the mother or one of her parents was intending to complain to the Medical Board about her conduct as a expert, just as there had been a similar complaint about Dr W and his report in this matter. I am quite satisfied that this expectation did not bias Dr R’s views or evidence, but I regard the complaints about each psychiatrist as potentially relevant to the suitability of the mother and her parents to have responsibility for the child’s care. However, I do not know who actually made each complaint so cannot rely on the complaints to assist in reaching any conclusion.

86. The oral evidence in question relates to what I regard as the fundamental concern in these proceedings; the child’s physical safety. It is of critical importance that Dr R said it is possible that the mother might, because of her mental illness, change or add to her current psychotic beliefs. She could adopt a belief which could put the child in frank physical danger. She also said that, if she believes the child is not her child and/or has other untrue and irrational beliefs, they can be emotionally harmful to the child because she will be drawn into the mother’s unreal world.

87. Dr R also said that to have the mother’s mother as a contact supervisor would not sufficiently protect the child from risk caused by the mother. She stressed that the evasiveness of the mother and her family; presumably meaning the mother’s mother because Dr R did not meet her father, and the attempts to conceal the mother’s illness and the limited insight into it which they demonstrated, are the reasons she felt that supervision by the maternal grandmother would not be a sufficient safeguard for the child’s welfare.

88. Of the mother’s illness itself, Dr R, in oral evidence, was more positive about the mother’s likely diagnosis being schizophrenia rather than a schizoaffective personality disorder, but seemed to favour a paranoid element to it. Her optimism does not blunt Dr R’s view that the mother’s illness poses a risk to the child’s life. Because of its significance, her evidence on this should be reproduced verbatim. Dr R was being cross-examined about the mother’s beliefs relating to baby swapping and the paedophilia of the father. The doctor said she thought the current situation was “dangerous”. This exchange then occurred:

“What’s the danger you perceive?---Well, if a person is suffering from psychotic ideas that, “This is not my baby or the baby’s been swapped,” then the person is likely to do something that would endanger the child’s life.

HIS HONOUR: Even if she doesn’t do that, a belief that she had that it wasn't her child, if she told the baby that, told the child that, that would be dangerous, wouldn’t it?---I think it’s dangerous. I think that, in instances where harm has come to children, it’s often been where a parent has had a delusional idea that, “This is not my baby”, or “This is Satan’s baby,” or whatever, and I think it’s a dangerous situation.”

Later, during her continuing cross-examination, I attempted to summarise the essential situation Dr R had described as being involved in having the maternal grandmother supervise contact. The rhetorical question and answer are critical in these proceedings. They are:
“Is what you’re really saying, this Dr [R], that there are risks involved and, at the worst, the risks are to the life of the child---Yes, I think so.”

Dr R eventually said that, of the persons or institutions which might be supervisors, the most appropriate is the father; presuming contact would only be once each month. She made it clear that because of that amount of contact being insufficient to maintain affective attachment, it is even more appropriate that the father be present during contact. Yet she is of the view that more contact with the mother would not benefit the child. It seems to me that the conclusion which must be reached about this is that there is no regime of contact which will really benefit the child.
89. I accept Dr R’s report and evidence as accurate and unbiased.

90. The mother’s evidence before me was very telling. It was characterised by evasiveness, non-responsiveness, inconsistency and an evolution of a version of events to suit what seemed to be her case when prior evidence was questioned and/or questionable. However, I accept, as she said, that despite medication being prescribed for her, she has not taken any prescribed medication since 1999, although she is likely to have taken it while she was in hospital. She gave clear oral evidence that she remains reluctant to take prescribed medication. I have little difficulty in finding the mother is not likely to adhere to any regime of medication which a psychiatrist might prescribe. I regard her evidence of her belief about child swapping and the husband’s involvement, paedophilia and cult membership as likely to reflect her true beliefs but not all her psychotically induced beliefs. I was given the strong impression by her evidence that she realised that she had unacceptable beliefs and attempted to conceal them, probably to some extent, successfully.

91. The evidence of her parents is quite insufficient to confirm anything she has said. Even evidence of the mother and her parents which has not been challenged, because the father and the Independent Children’s Lawyer were not in a position to dispute it, is to be assessed with scepticism.

92. I do not accept all the oral evidence the mother gave when being questioned about having been sexually assaulted by her father as a teenager. She was, characteristically, quite evasive about it. She resorted to saying she had no memory of being sexually assaulted. She said she merely recalled being physically assaulted by him, but she did not actually deny being sexually assaulted. This does not mean that her father did sexually assault her. Her psychosis may be playing a part in her interpretation of the relevant event. Her mother is bound to know or have a very good idea about whether the mother has a psychotically induced false idea that her father sexually assaulted her or did sexually assault her. In either instance she appears to be concealing her knowledge. Her father is also in the same situation.

93. At the centre of the case is the mother’s evidence about her fears that the child has been substituted for her real child. In an affidavit she said there were times when she doubted that the child was her child. Her oral evidence was much more disturbing because it was so clear that, whatever her real beliefs were, she was attempting to deceive the Court in order to conceal them. With the doubts about her suitability to have unfettered contact with the child which are raised by her clear evidence relating to the child swapping delusions, greater fears are raised by what appear to be her efforts to conceal her real thoughts.

My conclusion is that the maternal grandmother may have recorded the conversation she has transcribed and/or has a remarkable memory, but that the claimed transcript is at least likely to be defective in that it has been embellished with commentary and much has been edited out or has not been repeated verbatim although other parts may well have been. Dr R read the transcript and said it is not accurate. I believe her. The actual situation is, to me, not as important as the reason why the mother’s mother felt it was necessary to make a record of both Dr W and Dr R’s interviews when, especially with Dr W, there was no valid reason for doing so. I think that the mother’s mother is what her and her daughter accuse Dr W and Dr R of being. She and the mother clearly claim that these doctors are in league with the father to dishonestly deprive the mother of justice. I think the mother and her mother are probably carrying out a preconceived plan to overcome what the mother’s mother must have realised or believed in advance would result in unfavourable reports from the psychiatrists either because of the real situation or because of some paranoid belief she and/or the mother have that the father and others are plotting against her daughter or both. I am of the view that the mother’s mother probably fully appreciates the extent of her daughter’s mental illness and does not care to do all she can to protect the child from any adverse consequences of it.

The mother’s mother gave clear oral evidence that she does not think the mother needs supervision when in contact with the child. This is despite obviously having read both Dr W’s and Dr R’s reports carefully. She also claims that the mother has never told her about her belief that the father has been swapping the child. She said the father told her of this belief by the mother. So far as she could in the face of the overwhelming objective material before the Court, she tried to show that the mother is not psychotic or schizophrenic by claiming she can’t recall incidents, has not read the medical records, was told something different; that it was postnatal depression or stress from the court case or long gone effects of illicit drugs. She also resorted to a claim that because no blood tests had been taken it could not be said that the mother was mentally ill because she may have been affected by alcohol or illicit drugs at the time when she was reported to be acting strangely. Eventually she admitted she is a member of The Schizophrenic Fellowship and had tried to learn as much as she could about schizophrenia. Despite this, the maternal grandmother said that the last time she experienced any inappropriate behaviour in her daughter was when she was admitted to hospital in 2004. She attempted to intimate that this was due to post natal depression. She then claimed that she had forgotten about taking the mother to St. Vincent’s hospital because of suicidal thoughts. She blamed these on the proceedings.

The mother’s mother’s oral evidence was in many respects like that of the mother. Her tendency was to give a responsive answer to questions during cross-examination when she seemed to feel the answer would not harm her daughter’s case, yet to be quite resistant to giving an answer when she perceived that it might be adverse to her case. Her efforts to these ends where even more marked than her daughter’s tendency to do the same. The level of the mother’s mother’s evasiveness about her knowledge and the extent of the mother’s illness was quite remarkable, yet at all times she adopted a mien of righteousness as an honourable member of the community.

My conclusion about the mother’s mother is that she is a very dishonest witness whose evidence on critical questions cannot be believed. She could not be trusted to do her duty as a supervisor. If the mother’s contact is supervised by the maternal grandmother, she is highly likely not only to fail to disclose any matters of concern for the child’s physical or emotional safety at the mother’s hands, she will probably take active steps to conceal them.

The mother’s father gave oral evidence. His presentation was quite unusual. He suffers from a brain condition which makes him very volatile and uninhibited. It was plain to see when he gave evidence. He gave me the impression that, although his mood was swinging between sadness, self pity, anger and aggression, he was, relative to his potential, reasonably under control but that it would take little for him to explode into frank loss of control. After he had given his evidence he remained in court observing the proceedings. At one stage I noticed that he seemed to take exception to something which had been said in Court. He then did what I had had the impression he had the potential to do. He lost his self-control. He tried to rush from the Court after displaying a high level of agitation and anger. He was in such a state when attempting to open the courtroom door that he struggled with it in what appeared to me to be a frenzied state; unable to open it because he kept trying to pull it in the wrong direction and could not pause to think why he could not open it. Irrespective of the truth or falsity of the suggestions that the mother’s father sexually abused the mother as well as having physically abused her and the suggestion about his interest in pornographic literature, I do not regard him as suitable to supervise contact because of his moodiness and his lack of self-control. If while in the child’s presence he behaves like I have seen him behave in Court it would be a very frightening experience for her.

110. This is not a case where the Court must consider further than recognise the provisions of s. 65DAA(1) of the Family Law Act. The mother does not seek equal time with the child. Nevertheless, I must consider the balance of s. 65DAA and in particular whether the child should spend substantial and significant time with the mother because the mother, in her most recent Amended Application for Final Orders, seeks shared parental responsibility. Although this is not an express request for equal shared parental responsibility, it should be interpreted to mean this because anything less than equal shared parental responsibility in one party is tantamount to having no practical parental responsibility where there is no specific area which is designated as unequal. I bear in mind the objects of Part VII of the Act and the principles underlying it as stated in s. 60B(1). Thus I recognise that it is an object of the Act to promote the best interests of the child by making orders which so far as it is possible to do so:
a)give her the benefit of both parents to the extent that it is appropriate to do so;
b)protect her from physical and psychological harm and from being exposed to abuse, neglect or family violence;
c)ensure she receives adequate and proper parenting so she can achieve her optimum potential; and,
d)ensure both parents fulfil their duty to her and meet the responsibilities inherent in providing for her care and welfare.
These objects are the product of certain principles. These are enunciated in s. 60B(2) of the Act and are:
a)   that a child has a right to know and be cared for by both parents, provided this is not inconsistent with its best interests;
b)     that a child has a right to spend regular time and communicate regularly with its parents and others significant to it including grandparents, unless this is contrary to its bests interests;
c)     and d) that parents ought jointly share the duties of raising their child and should agree on how to do it; and,
e)     that a child should know, understand and have the opportunity to enjoy its culture, including by associating with others of that culture.
I am also mindful of s.61DA of the Act which provides that the Court should presume that it is in the best interests of a child for the child’s parents to have equal shared responsibility. The presumption does not apply where the child has been abused by a parent or where a parent has engaged in family violence and is also rebuttable by evidence which, on balance, leads the Court to be satisfied that equal shared parental responsibility would not be in the child’s best interest.

In deciding what is in a child’s best interests, the Court must consider the matters which, by s.60CC of the Act, are to be regarded as a statutory formula for determining what orders will best promote a child’s welfare. It is an all encompassing formula because, apart from specified matters, the Act itself also requires consideration of “any fact or circumstance that the Court thinks is relevant”. It is worthwhile to mention that although a child’s best interests is paramount in determining what parenting orders to make (s. 60CA), the use of “paramount” implies that other factors can be taken into account.

The only factors which the mother raised which are not otherwise specifically dealt with by s.60CC are the mother’s own wish and her parents’ wishes to spend time with the child. In the mother’s case, that wish is not strong enough for her to move to a place which makes it more practical for her to spend frequent time with the child and she does not seek what I would regard as frequent time. Except for school holidays, she only asks for alternate weekends with her. One of the reasons she cannot see the child more frequently and for longer periods, is the distance between her home on the Coast and the father’s home in the Blue Mountains. She is very keen on surfing and is not prepared to sacrifice her ability to go surfing frequently for the sake of an ability to see the child frequently. Her failure to take advantage of all her recent opportunities to see the child indicates a lack of keenness to have much contact. This does not seem to be inconsistent with the delusion she has about the child. It is her application which seems paradoxical in the light of her belief that the child is, or is at times, not her child.

I accept that the maternal grandparents have a strong desire to see the child and I shall take that into account. It is to be compared to their desire to ensure the child’s safety. In my assessment, their desire to do this has not been strong enough to make them refrain from attempting to deceive the Court about the mother’s medical history and condition as it is relevant to the child’s safety. I shall take this into account.

S. 60CC(2) of the Family Law Act states the most basic matters which should be regarded as critical in determining what is in a child’s best interests so far as these matters are raised by the evidence in a particular case. Here they are of overwhelming importance. However paragraphs (a) and (b) in subs. (2) are quite in conflict. The need to protect the child from physical and psychological harm requires a need to make orders which limit her ability to have a close relationship with her mother.

I am quite satisfied that the mother is significantly disturbed mentally. It is more than highly likely that she harbours the belief, or at times does so, that the child is not her child and has been substituted for her child. There seems virtually no likelihood that the mother will undertake and maintain the treatment she needs to overcome the mental illness which causes this psychosis. If, while having the child in her care, she is afflicted by this belief, it is likely to have an adverse impact on the child’s psychological health. The child is bound to discover or suspect there is something wrong with the mother’s thoughts about and feelings for her. Feelings of rejection or the like are the likely consequences for the child.

I accept the mother’s evidence that even if or when she has this disturbed belief she is likely to care properly for the child in a physical sense (with a critical exception) because she feels responsible for a stranger’s child who might be placed in her care. But adequate physical care is insufficient where parental love is needed. The child is bound to feel and be very disadvantaged by anything less than maternal feelings in the mother. The psychotic belief which the mother holds either all the time or part of the time that the child is not her child raises a considerable and quite unacceptable risk that it will cause the child substantive emotional harm if she is exposed to significant time in the mother’s care.

This is not, in my assessment, the greatest danger the mother poses to the child. The mother also poses a threat to the child’s physical safety. It is at least a realistic possibility, according to Dr R, that the mother’s mental illness will cause her to adopt other psychotic beliefs which will motivate the mother to harm the child physically. There is an unacceptable risk to the child’s safety and even life, if the mother is allowed to care for her without adequate safeguards in the form of supervision. There is a realistic chance that the mother already harbours undisclosed beliefs which could put the child at risk. The risk involved should, in the child’s best interest, not be taken. The risk of frank harm is the critical exception referred to earlier.

Although I believe it would ordinarily be in the child’s best interests, psychologically, to have supervised contact with her mother, there are no appropriate supervisors other than the father and Ms K who have been suggested by the evidence. The father and Ms K have agreed to supervise and their relationships with the mother are such that it might be acceptable to the mother, but nobody else who is suitable was ultimately advanced. Originally, Mr …, who is the mother’s housemate, was suggested but that proposal seems to have fallen by the wayside during the course of the proceedings. I do not consider that he could safely supervise contact. He could be manipulated by the mother with relative ease. No public facility or privately hired individual was put forward by the mother. The known public facilities, including the Central West Contact Service which was suggested by the father, may not accept the mother. The mother is unlikely to accept the arrangements needed but, in any event, supervision in this instance is likely to be needed for such a long term that a public facility would not accept the necessary supervisory role if, it is does initially accept it for long and is likely to refuse to continue it after a short period. Such discontinuance is likely to be more harmful to the child than immediate refusal of contact. The Central West Contact Service, in particular, is most unlikely to agree to supervise.

The only people the mother asks to be appointed, in the event that appointment of a supervisor is her only way to have face-to-face contact with the child, are her parents or one of them and a Mr or Mrs E.

The mother made an urgent interim application that Mr and Mrs E be appointed as supervisors for interim contact in late 2007. Ms E is the maternal grandfather’s brother. Both Mr and Mrs E gave oral evidence before me and satisfied me that they would do their best to uphold their responsibilities and duties as supervisors in a proper, diligent fashion. However, the circumstances they found themselves in made it quite inappropriate for a supervised contact order to be made. They really do not know the mother. They have only met her a few times and had no idea of the extent of the mother’s illness or the degree of supervision they might be required to undertake. They live in northern New South Wales. They came to Court believing that the mother could be supervised while caring for the child at their home for something like a week at a time. They clearly had second thoughts about their involvement when asked to consider a hypothetical situation which was close to the reality of the mother’s true position. There has been no application, for them to be appointed as supervisors by final orders. If there would have been such an application I would have refused it unless I was satisfied they had a sufficient understanding of the mother’s mental illness and the risks she poses to the child and could and would actually provide the supervision which would be necessary, whether it be for long periods or very short periods and whether it would be in the Blue Mountains, the Sydney areas, the mother’s Coastal home region or northern New South Wales.

In view of my fears for the child’s safety, for overnight contact to be ordered, I would need to be satisfied that the supervision would be such that at all times, even when most people might be expected to be asleep, there would be active supervision which would be sufficient to prevent the mother from abducting the child, a prospect which I regard as a necessary consideration. It should be remembered that the mother has already inappropriately, and probably while actively ill, spirited the child away more than once. I am quite unconvinced by the mother’s claims about her reasons for going to Perth and her failure to answer the door when DOCS visited while she was living at P in Sydney and why the door was broken down so the police and DOCS could gain entry. When the mother took the child to Melbourne the inference is she was mentally disturbed. The state of her car was not merely proof of the mother’s inability to provide proper physical care.

It would be quite unacceptable and dangerous to the child to permit either maternal grandparent to supervise contact. The grandmother has habitually shown, in these proceedings, either because she is simply prepared to be dishonest to achieve her ends or because she is quite disturbed herself or, which I regard is the most probable situation, both, that she could not be trusted to protect the child by properly supervising the mother’s time with her. It is highly likely that either she will not attempt to do so because she does not believe the mother poses any risk to the child or, if the mother does anything to cause alarm or which might be a reason to end supervision, the maternal grandmother will fail to take appropriate steps because to do so will tend to disclose the mother’s mental condition; something the maternal grandmother has been hiding and is keen to continue to hide.

Although the evidence about the maternal grandfather is not as clear as that about his wife, he has been actively involved in these proceedings and at no time disclosed knowledge he has which is contrary to the stance about the mother that both the mother and her mother took. He too struck me as being quite disturbed. His presentation in the witness box and afterwards in the courtroom was not one which would allow the Court to have any confidence that he would or even could do his duty as a supervisor despite his uncalled for protestations of righteousness.

With both maternal grandparents there are other significant reasons to regard them as unsuitable to supervise their daughter’s time with the child. My extremely strong impression of each is that they are so disturbed that to bring the child into regular and/or frequent contact with them poses a direct risk for the child’s emotional health. The maternal grandmother’s hatred for the father could not go unnoticed by the child. She is likely, in my assessment, to actively intend to as well as to subconsciously do and say things which will undermine the child’s image of the father. The grandfather’s lability is likely to be very unsettling for the child.

Thus, to protect the child from the risk of physical and psychological harm, the ability to make orders which allow her to have a meaningful relationship with the mother is severely limited.

The evidence by Dr R of the possibility that the mother’s psychosis could lead to extreme harm to the child at the mother’s hands and the lack of suitable supervisors other than the father and Ms K, make the additional considerations required in s.60CC(3) relatively insignificant. Those listed in paragraphs (1),(h) and (k) have not been the subject of evidence and are clearly irrelevant here. I shall briefly discuss the other paragraphs.
Paragraph (b) – The child’s relationship with the parents and others of relevance: the child has a normal relationship with the father and is comfortable with Ms K and their new baby. She does not appear to have been disturbed by the change in primary carers from the mother to the father and Ms K. She is comfortable with the mother but for the reasons I have already dealt with at length, the mother’s relationship with the child is quite problematic. In addition, her actual involvement and the involvement she seeks, to repeat Dr R’s words, “seems to be marginal”. There is insufficient credible evidence about the child’s relationship with her maternal grandparents to reach any conclusion about their relationship with her. It cannot be said from this that it will benefit or harm the child to see or not see them. However, Dr R expressed the view that for the child to have overnight contact with the mother at the maternal grandparent’s house would not be a “psychologically healthy environment” for the child. She based that opinion in part on problems she identified as afflicting the maternal grandparents.
Paragraph (c) - Each parent’s willingness and ability to facilitate and encourage a close relationship between the child and the other parent: The father’s willingness to do this is only limited by justified fear for the child’s welfare. His good intentions are shown by his willingness to act and to have Ms K act as a supervisor. The mother’s willingness is limited by her psychosis. Strangely, she has not clearly expressed any wish to protect the child from the father because of her delusional belief that he has swapped her, is a member of a paedophile cult etc and she is not seeking that he not be the child’s principal carer. I regard this as an indication that she and her parents know the truth about her mental condition.

Paragraph (d) - The likely effect of change in the child’s circumstances including any separation from the mother and maternal grandparents: As I do not know her relationship with the maternal grandparents, I cannot say what the effect of change from the current arrangements by which she sees nothing of them or from prior arrangements by which she saw more of them, will be. According to Dr R, the mother’s proposal for unsupervised or supervised contact at the frequency she seeks is quite unsatisfactory because it will not allow the child to develop an appropriate relationship with the mother. It cannot be said that to reduce the contact further is likely to do additional harm to the child especially because to reduce her exposure to the mother will reduce the likelihood of the child suffering psychological harm by becoming aware of the mother’s psychotic and deluded beliefs about her.
Paragraph (e) - The practical difficulty and expense of contact and whether these will undermine the child’s relationships and level of contact with the mother: The mother’s claim for contact is based upon her self-imposed difficulty with travel for contact purposes. As the mother does not wish to have much more contact than she had been having when last entitled to it, further consideration of the practical difficulties cannot be directed at overcoming the difficulties nor can it result in more frequent contact. However, the practical problems of contact ought to be regarded as a factor affecting the length of the contact if it is to be supervised by the father and/or Ms K. The situation is simple. If they are to be the only supervisors, contact will have to be quite limited in place and time. It is not very appropriate to require the father and/or Ms K to have to travel away from their home in order to supervise the child’s contact with the mother. Nor should such contact be for lengthy periods in the circumstances. Yet the mother will have to travel for three hours or more each way to have contact with the child in the Blue Mountain area. Contact should be for relatively short periods because it will largely be in, or in the vicinity of, the father’s home and despite the relatively good intentions of the father and Ms K towards the mother and contact between her and the child, because of the mother’s beliefs, attitudes, psychosis, delusions and propensities it must involve very close supervision. With the near certainty that the mother will resent this, there is a likelihood that tension will develop between the father and Ms K on the one hand and the mother on the other. More importantly, I am not satisfied that the father and/or Ms K would surely be able to prevent the mother from taking and/or harming the child if she were to attempt to do so, especially if the attempt was planned.
Paragraph (f) - The capacity of the parents and significant others to provide for the child’s needs, including her intellectual and emotional needs: All relevant adults are likely to be able to provide adequately for the child’s intellectual needs given the extent of contact the mother seeks. I have no doubt that the father and Ms K are more than merely able to provide for the child’s emotional needs. For reasons which have already been expressed, I do not accept that the mother and her mother and father have sufficient capacity to provide for the emotional needs of the child. Because all are probably disturbed, contact between any of them and the child has the potential to undermine the child’s emotional wellbeing. There is a risk that the child will be drawn into their disturbed and what I regard as unrealistic worlds. The mother’s delusions about the child and the father, her mother’s dislike of the father and her father’s lack of self-control and mood swings are particularly unacceptable risk factors.
Paragraph (g) – The child’s age: The other factors to consider under this paragraph are not relevant or significant. The child’s age; 5 years, is. She is old enough to appreciate that the mother has ambivalent failings towards her; that her care for her arises at times or continuously out of a sense of duty rather than maternal love, yet she is not old enough to be taught how to cope with this, if any child can. She is also vulnerable because of her age to being affected by the mother’s delusions about the father, and any other delusions or beliefs which are cause by her psychosis, her maternal grandmother’s dislike of the father as well as the grandmother’s own disturbed thinking by the grandfather’s extreme moodiness and lack of self control, yet the child is not of an age when even counselling could teach her to cope with these characteristics of her mother and grandparents.
Paragraph (i) - The parent’s attitudes to the child and the responsibilities of parenthood: The father, since he became the child’s principal carer, has demonstrated a degree of responsibility about the obligations of parenthood which is beyond reproach. The mother gives her interest in surfing a priority over regular and frequent contact with the child and demonstrates her lack of parental responsibility by doing do. Some of her other responsibilities as a parent are undermined by her disturbed perceptions and beliefs.
Paragraph (j) - Family violence: I do not accept that the father has been violent to the mother. The incident where he admits to slapping the mother was more an act of self-defence and an attempt to protect the child from the mother’s aggression. Even if the father had been as violent as the nebulous claims of the mother suggest, this would be far from a sufficient reason to depart from the orders which would be made if there had been no violence. There is no suggestion that the father has been violent towards the child. The issue of family violence is not restricted to that which has or might come from the father’s side of the family. The mother has alleged her father has been violent towards her. I am not satisfied he has been, but her father’s presentation leads me to conclude that the maternal grandfather does pose a risk of overacting towards the mother and/or the child in a frightening manner and that the child should be protected from this possibility although I cannot find on balance that either rape or assault has been committed by the paternal grandfather. The risk that the maternal grandfather might rape or otherwise sexually abuse the child is so slight it is not an unacceptable risk if they are in contact. There is a risk of assault due to the grandfather’s problems with volatility. I do not regard it as so great that it is unacceptable. Any assault is likely to be an ill judged attempt to reprimand the child if she tries his patience.
The most worrying risk is that which the mother poses to the child as a result of her known and unknown delusional beliefs and any which she might develop. There is a risk, although possibly quite remote, of real violence; violence which could be so extreme, according to Dr R, that the child’s life might be extinguished. No matter that this is a very remote possibility, the Court cannot discount the risk to the extent that it is regarded as acceptable. I regard the risk that the child’s life might be endangered because of the mother’s delusions as so serious that the Court cannot allow the mother to have contact with her unless substantial and ongoing safeguards are put in place which ensure that during contact not only will the mother be watched at all times but that her opportunities to run away with the child or otherwise place her in danger are eliminated. As I do not regard that as reasonably possible, I conclude that there should be no contact, supervised or otherwise, between the mother and the child if the child’s physical safety is to be properly maintained.
Paragraph (l) - Avoidance of other proceedings: Although I would usually attempt to make orders which I believe have the best chance of avoiding further litigation over a child, in this instance I hope that, eventually, the mother will put herself into a situation where she could have contact with the child because her delusions and psychosis are reduced. To do this she will have to comply with a regime of treatment for her schizophrenia and/or psychosis which works. To commence to take medication which has been recommended or prescribed by a psychiatrist who has not been mislead by her or her mother would appear to be a necessary condition for her improvement. Reliance on so called treatments which the mother or her mother feel are more acceptable is unlikely to be enough.
Paragraph (m) - Any facts or circumstances which are deemed relevant but have not so far been considered: I have considered as relevant all the matters discussed or referred to in this judgment and no other matters.

Weighing all the matters, I am quite convinced that unacceptable risk to the child’s safety created by even strictly supervised contact when seen with the lack of benefit to the child which the contact sought by the mother will bring, warrants a refusal of the Court to permit contact. The extent of supervised contact that the Court would otherwise order, is restricted in its possible benefit to the child by the mother’s own application and the likelihood that the mother will not reliably use the opportunity which orders in her favour. The limits on supervision as to time and place which would have to be imposed to make contact safe and more than a risky attempt at safety and the lack of likely benefit to the child of such contact and its likelihood to lead to emotional harm creates the situation where a refusal of contact will best advance her welfare. That is the order I shall make. In light of this order, it would be inappropriate to allow the mother any say in the decisions needed for the child’s future care. Although it would be good for the child to know that her mother has participated in her upbringing to that extent, the mother will not know her well enough to be able to make a worthwhile contribution to those discussions and her delusions and psychosis are likely to adversely affect her capacity to make good choices. Conflict is likely to arise from any sharing of parental responsibility. Telephone contact is also, in my opinion, likely to be the source of risk to the child’s emotional welfare. The likelihood of conveyance to the child of rejection creates a real risk. The evidence does not satisfy me that the likely benefits of telephone contact outweigh the likely detriments if the risks I contemplate come to pass. I shall not provide the mother with any right to telephone contact. This will not prevent the father from allowing it if he is satisfied it is not likely to be harmful. He will be entitled to supervise it by listening in as a condition of its grant by him. It may meet the mother’s needs and assist her to settle and thereby become more amenable to proper psychiatric treatment if she is able to follow the child’s progress by receiving her school reports and notification of any serious illnesses which the child suffers. I shall make orders to the mother to receive these. There is no basis to make a non-denigration order against the father or to restrain him from stalking or harassing the mother and no point in making a non-denigration against the mother. I shall not make these.

Because of my findings, in the light of the complaints which have been made against Dr W and Dr R, they should each be provided with a copy of this judgment for use, if the need exists, in answer to those complaints. I shall order that to be done.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.
Associate:
Date: 5 June 2008

[2008] FamCA 389

5 June 2008

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