Miranda & Cales
[2021] FamCA 178
•17 March 2021
FAMILY COURT OF AUSTRALIA
Miranda & Cales [2021] FamCA 178
File number(s): SYC 8016 of 2019 Judgment of: ALTOBELLI J Date of judgment: 17 March 2021 Catchwords: FAMILY LAW – PARENTING – Interim parenting – Mental health – Where single joint expert report available –Risk assessment conducted – Concerns that evidence presented in the mother’s case is selective – Impression formed that children at risk of harm under the mother’s care – Interim orders made for the children to live with the father and spend supervised time with the mother. Legislation: Family Law Act 1975 (Cth) ss 60AA, 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode [2006] FamCA 1346
Jopson & Lilwall (No. 2) [2016] FamCAFC 262
MRR v GR [2010] HCA 4
Number of paragraphs: 99 Date of last submission/s: 9 March 2021 Date of hearing: 9 March 2021 Place: Sydney Counsel for the Applicant: Mr Lethbridge SC Solicitor for the Applicant: Doolan Wagner Family Lawyers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Edwards Family Lawyers Advocate for the Independent Children's Lawyer: Ms Neligan Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 8016 of 2019 BETWEEN: MS MIRANDA
Applicant
AND: MR CALES
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS THAT:
1.Pending further order, orders 1, 2, 3, and 4 of the orders dated 31 March 2020 be suspended.
2.The mother be at liberty to spend supervised time with the children as follows:
- During the school term:
i.From after school/day care (approximately 2.30 pm) until 6.30 pm each Wednesday; and
ii.From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.
- During the school holidays:
i.From 9.00 am to 4.30 pm each Wednesday; and
ii.From 9.00 am to 4.30 pm each Saturday or Sunday, with the mother to notify the Father via Our Family Wizard which day she chooses to nominate for the forthcoming calendar month, by no later than the 29th of each calendar month.
- Any additional time that is agreed to in writing between the parents on Our Family Wizard.
3.The children live with the father at all other times.
4.The mother be at liberty to attend the children’s extra-curricular activities, namely playgroup on Thursday afternoons and gymnastics on Friday afternoons.
Supervision
5.Pending further order, during all times that the children are in the care of the mother, the mother be supervised by:
- The mother’s parents, Mr Miranda or Ms B Miranda, or any member of her biological family; or
- The father’s parents, Ms Cales or Mr C Cales; or
- Ms D; or
- Any other supervisor that is agreed to in writing between the parents on Our Family Wizard.
6.Prior to any visit occurring between the mother and the children per order 2 above, the supervisor/s pursuant to order 5 above file an Undertaking with the Court confirming that:
- They will supervise the children at all times, and remain within remain within visual and audible distance, during the time that the children spend with their mother;
- In the event they are unable to supervise the children, they will immediately contact the father;
- If there is any issue as to the safety or welfare of the children during any supervised visit, or in the event that the mother suffers a health episode, they will immediately contact the father by telephone;
- They each will not denigrate or insult either parent and or their family in the presence or hearing of the children, and will use their best endeavours to ensure that others do not denigrate or insult either parent in the hearing or presence of the children;
- They will ensure that the mother does not drive the children while the mother is spending supervised time with the children; and
- They agree to be bound by the Undertaking until excused by the Court.
Changeover
7.Unless otherwise agreed in writing between the parents on Our Family Wizard, all changeovers shall occur by either:
- The father delivering the children to the driveway of the mother’s residence at the commencement of time, and collecting the children from the driveway of the mother’s residence at the conclusion of the children’s time with the mother; or
- The supervisor collecting the children from school/day care at the commencement of the mother’s time, and delivering the children to the father’s residence at the conclusion of the children’s time with the mother; and
- The mother is to notify the father via Our Family Wizard no less than seven (7) days prior to any visit whether she nominates changeover occur pursuant to order 7(a) or (b).
8.Pending further order, the Mother be restrained from operating a motor vehicle in which the children are a passenger.
9.Leave be granted to the parties to file consent orders in Chambers.
10.This matter be granted expedition and placed into my docket for allocation of a hearing date at the earliest convenience.
IT IS NOTEDTHAT
A.This matter is listed for Mention on 11 May 2021 at 9.30am.
B.These orders are made following the delivery of oral reasons for judgment on 17 March 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miranda & Cales has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from the transcript)ALTOBELLI J:
In this matter I provide the following oral reasons for judgment. These are, regrettably, short-form reasons for judgment. This is a case that needs an urgent and prompt decision in circumstances where two young children, X who is seven, and her sister, Y, who is four, are not spending time with their mother, with whom they primarily lived prior to an incident that occurred on 14 November 2020.
The mother is the Applicant in these proceedings, and the father is the Respondent. On 31 March 2020 interim orders were made in the Federal Circuit Court in Sydney by her Honour Judge Neville for the children to live with their mother and spend time with the father on a two-weekly cycle from Thursday 3pm to midday Saturday in week 1 and from Thursday 3pm until 9am Monday in week 2. Her Honour had the benefit of a single joint-expert report prepared by Dr F.
On 14 November 2020 the mother presented and was admitted to M Hospital as a mental-health patient, and she was discharged on 4 December 2020. The question of the mother’s mental health and, in particular, the risk of relapse into further mental ill health is one of the main issues in this case. Since 14 November 2020, or shortly thereafter, the children have lived continuously with their father.
Apart from a short visit on Christmas Day the mother has not spent time with the children since 14 November 2020. The mother has, however, had frequent communication with the children. The mother filed an Application in a Case on 18 December 2020 in which she sought the children to be returned urgently into her care and resume spending time with their father in accordance with the orders made 31 March 2020. The father opposes this, instead proposing that the 31 March 2020 orders be discharged and that the mother spend supervised time with the children but otherwise live with him.
By way of further background, in December 2008 when the mother was 18 years old she was involved in a serious car accident in which the driver, her boyfriend, was killed. She suffered a range of injuries including a badly fractured leg and perforated bowel. She was subsequently diagnosed with post-traumatic stress disorder as a result of this accident.
The matter came before me for interim hearing last week on 9 March 2021. Both parents were represented by senior counsel, and an experienced Independent Children’s Lawyer represented the children. There was much material put before the Court.
The mother relied on the following documents in support of her case:
(a)Affidavit of Dr G filed 14 January 2020;
(b)Affidavit of Dr G filed 30 January 2020;
(c)Application in a Case filed 18 December 2020;
(d)Her Affidavit filed 24 February 2021 and corresponding tender bundle;
(e)Report of Dr H dated 2 March 2021;
(f)Affidavit of Ms J filed 3 March 2021;
(g)Case Outline document filed 5 March 2021;
(h)Affidavit of Dr G filed 8 March 2021;
The mother tendered several documents in the interim hearing, marked as exhibits A1 to A7.
The father relied on the following documents in support of his case:
(a)Response to an Application in a Case filed 15 January 2021;
(b)His Affidavit filed 15 January 2021 and corresponding tender bundle;
(c)His Proposed Minute of Order dated 18 January 2021;
(d)Case Outline document filed 1 March 2021.
The father tendered two documents in the interim hearing, marked as exhibits R1 and R2.
The Independent Children’s Lawyer relied on the following documents in support of her case:
(a)Ex Tempore Reasons for Judgment of Judge M Neville delivered 19 December 2019;
(b)Expert Report prepared by Dr F dated 2 October 2020;
The parties also relied on documents contained within a joint tender bundle prepared by the Independent Children’s Lawyer, marked as exhibit ICL1.
It was accepted that the present exercise was, in effect and substance, a risk assessment and management exercise. The Court would have to do the best it could in the context of an interim hearing to establish whether there as a risk to the children spending time with their mother. If so, what is that risk and how can that risk be managed, particularly if the risk were to be characterised as a risk or relapse into mental ill health.
It was also agreed that the matter be expedited and, to that end, remain in my docket. It was common ground that Dr F would be re-engaged to provide an update on her single joint-expert report. The matter will come before me on 11 May 2021 at 9.30am so that any interim orders I make can be reviewed and so that Dr F’s updated report may be considered. It follows from this that this may well be a short-term decision that is reviewed not just after the receipt of Dr F’s further report, but also possibly at a final hearing.
The applicable law was not in dispute, and is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration:
s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The unavoidable need for the Court to conduct risk assessments in parenting cases at an interim stage is acknowledged by Murphy J, sitting as the Full Court, in Jopson & Lilwall (No. 2) [2016] FamCAFC 262:56.The notion that the judges of this court, or judges of the Federal Circuit Court are not haunted by the prospect of erroneous assessments of risk is as offensive as it is false. But assessments have to be made. Best interests involve a balance. Some assessments of risk are to be made after a trial and a careful assessment of the evidence. But, some assessments of risk have to be made at interim hearings in the absence of the deliberations inherent in a trial. If it were otherwise, there could never be an interim decision that did not default to the entire acceptance of a case that asserted risk. While like the medical adage, the court of course seeks to first do no harm, there is, as Fogarty J has remarked, always a risk and there are always concerns. The issue is the extent of the risk and the things that might be done reasonably to alleviate (note, not eliminate, but alleviate) the risk.
(citation omitted)
As foreshadowed, the mother’s proposal was that the children be returned to her care, and resume living with her and spending time with their father in accordance with the orders dated 31 March 2020. The husband was to be restrained from retaining the children otherwise than in accordance with those orders. She also sought a recovery order to issue, but to remain in the registry, for the purposes of issuing on notice if the father once again fails to comply with the orders.
Moreover, if the Court came to the view that there had been a change in circumstances sufficient to warrant the reconsideration of the orders made by Judge Neville on 31 March 2020, the mother proposed that the order for the children to live with their mother and spend time with the father be varied such that, in effect, the children would spend one day less each fortnight with their father and would spend each alternate weekend with their mother.
The father’s proposal was that the orders made 31 March 2020 be discharged, that the children live with him and spend supervised time with their mother from after school or day care until 6.30pm each Wednesday and from 9am to 4.30pm each Saturday and Sunday with provision for spending time during the school holidays as well. The father proposed that the supervision be provided either by the mother’s parents, the father’s parents, Ms D, or any other agreed supervisor.
The Independent Children’s Lawyer proposed that the orders made 31 March 2020 be confirmed, but that for a period of four weeks the mother was to arrange for certain named individuals to attend her home for a period of two hours each evening, preferably between 6 and 8pm, whenever the children were present in the mother’s care.
The beginning of the risk assessment exercise must start with the Court gaining a proper appreciation of what took place on 14 November 2020. This is not only important from a factual perspective of understanding the events, but it is also important from the perspective of seeking to perceive the mother’s own insight into these events. An appropriate starting point is, thus, the mother’s own evidence about the day in question. This is found at paragraphs 7 to 17 of her Affidavit filed 18 December 2020, and these paragraphs are largely replicated at paragraphs 8 to 17 of the mother’s Affidavit filed 24 February 2021.
She provides other evidence in the latter Affidavit which relates to the medical care she received, but not about the events in question. The mother describes her admission to hospital as voluntary. She says that she suffered a brief period of acute psychosis brought on by extreme stress. She says that these symptoms lasted for “a very short period of 24-48 hours”.
She refers to the primary psychotic symptoms being her concern that brownies and water that she had been given by her friends may have been unusual. She attributes the stress precipitating the hospital admission as arising largely from the legal proceedings over the last 12 months as well as financial stress. She refers to her friends, Ms J and Dr K, as being present at the time of the onset of the symptoms and the children having gone to bed at the time.
The Court has a number of concerns about the mother’s evidence. It is short on detail and, in fact, is minimalistic. It is inconsistent with hospital records, for example, in relation to the voluntariness of her admission, the length of her psychotic symptoms, the precipitating factors for the admission and when the children were present.
Of greatest concern to the Court is that so little evidence is given about the mother’s care of the children during the period of her psychosis. Even if it is the case that the psychotic symptoms only lasted for 24 to 48 hours, the Court does not know what these children were exposed to or how they reacted. The Court’s concerns are compounded by the fact that there is no evidence from Dr K at all, and the evidence of Ms J does not refer to the children or to what she in fact observed in any meaningful sense.
The Court regards these as serious deficiencies in the mother’s evidence. Of course, the mother was experiencing psychotic symptoms, so a possible hypothesis is that her memory was impaired, but that does not explain how it is that the mother provides slightly different and sometimes more detailed accounts of the events of the day to other treating professionals.
Regrettably, an impression is formed that the mother has minimised the circumstances of her mental health admission, the psychosis that she experienced, the precipitating factors and what exactly the children were exposed to during the episode and the lead-up to it. A brief perusal of the hospital documentation contained in the joint tender bundle highlights some of the Court’s concerns.
The impression created from these documents includes the following. The mother was, at least for part of the time, an involuntary patient, not a voluntary patient. Her presentation in the emergency room was described as catatonic. She was refusing to eat or drink. Vague suicidal ideation is referred to. There are references to paranoia about events. There are recurrent references to the mother’s feeling of helplessness, worthlessness and thoughts of not worth living, but no active thoughts or plans of the same.
The mother showed some insight that her feelings and actions over the few weeks before her admission may have had something to do with her admission. She told one of her doctors about hearing voices. She denied having seen another psychiatrist, although she had in fact seen Dr G. The psychiatric impression on admission was major depression with likely psychotic and catatonic features with ongoing risks of severe self-neglect and reduced and fluctuating level of mental state.
On 15 November 2020 a progress note records that Ms J – presumably Ms J, a witness in the mother’s case – reports that the crisis occurred about six weeks ago, but Ms J also reports things having been piling up. Ms J is further recorded as saying that the mother had asked her to come and take the girls, and said to Ms J, “take me somewhere to put me down”.
Ms J went on to say that the mother denied suicidal intent because she was too much of a coward but reportedly said that she wanted someone to do it for her. Ms J was aware that the mother’s GP had prescribed Sertraline 12.5mg which had increased to 50mg four days before the episode, but Ms J was unsure about the mother’s compliance.
Ms J had visited the mother on Tuesday, noting that the house was a mess. When Ms J went to visit the mother at around 11am on 14 November, the mother was still in bed. The mother reported that she couldn’t sleep as she was thinking too much and told her friends that she was a terrible person and didn’t deserve to be here. She said she should be locked up in prison and could not look after her children. The children were with their father but he returned them, and they all apparently had lunch. The mother reportedly became more and more withdrawn and was then not able to express her thoughts. She was lying in bed, crying and barely responsive. Her friends asked her if she wanted to go to hospital, and she nodded in agreement. It reportedly took them 40 minutes to get her into the car.
There were times during the mother’s admission when she was receiving one‑on‑one nursing care. It is of great concern to the Court that the objective records about the mother’s admission and her mental-health issues are not accurately presented anywhere in the mother’s material. The documents produced by the mother’s own treating doctors and psychologist also raise concern.
The mother suffered this mental-health episode even though she appears to have been well supported by both her doctor and psychologist. On 30 July 2020 her doctor recorded that the mother was presenting as “really distressed” and “anxious”.
On 22 August 2020, the medical record notes that she “feels isolated and slightly depressed”, and was asking if she could access more mental-health services and support groups. Her doctor discussed the need for antidepressants, but the mother is recorded as “not keen at this stage”.
On 29 August 2020, the mother presented as flat, completing a K10 psychological inventory in which the doctor noticed that “she minimised symptoms or explained these”. I note the doctor also records that the mother reported having found cameras and listening devices in the home.
On 18 September 2020, the mother was reported as feeling exhausted and overwhelmed. The doctor was apparently concerned about the mother. The note records that she offered to attend emergency for mental-health assistance with her. The mother was reported to say: “it’s not new – ongoing”. The doctor records giving her the crisis emergency care contact numbers and there is a reference to a mental-health assessment “next week”.
On 22 September 2020, the doctor records advice to the mother to start antidepressants, and Zoloft 50mg was prescribed. On 30 October 2020, the note records the mother saying that her mood had in fact improved after starting Zoloft.
It is to be remembered, of course, that the mother was the primary carer of the children throughout this period. Nowhere in the mother’s evidence does she refer to the state of her mental health in this period. There is a record of the mother attending her doctor on 11 December 2020. Her presentation was recorded as being flat. Her affect was reduced. She was notably controlled in how and what she said. The mother was recorded as feeling spacey, nauseous, dizzy and experiencing headaches.
There is a note about her preferring not to take ‘RX’ to manage pain, and the Court infers that ‘RX’ is an abbreviation for a doctor’s prescription of medicine. Under the heading ‘Psychosis’ the following is recorded:
Earliest sign – started to go within self, feeling weak, some slight paranoia thought . Triggered by stress. Started to question friend – so used to be told I am wrong, that it seemed wrong for people to be nice.
-taste sensation went wrong. Took a bite of brownie. Tasted wrong. Drank water and it felt more like a syrup than normal.
-when got to hospital, could not open mouth to take Rx or water. Could not speak.
Apparently friend was trying to pinch and wake her up in ED. Can’t remember CT scan or hardly being in ED.
(errors in original)
There is a document entitled ‘Psychological Access + Report – Initial’ dated 3 September 2020. In reference to the K10 psychological assessment the mother undertook, the notes records low confidence in the report given very different to presentation. Even the mother’s psychologist was seemingly concerned about the reliability of the K10 assessment. The psychologist’s initial assessment findings were: “Tangential + circumstantial, flat speech ? Paranoia”.
The mother clearly saw her psychologist in September 2020, but the documents produced suggest that she did not follow up with her psychologist, who later followed-up with the mother on 3 November 2020.
The focus now turns to assessing the risk of harm to the children in view of the evidence before the Court. The overall impression created by the objective evidence is that the mother was experiencing problems with her mental health for several months which culminated in a serious episode leading to her admission to hospital, initially on an involuntary basis.
It is very hard for this Court to avoid the impression that, not just at the time of the mother’s admission to hospital, but in the months beforehand, there were periods when the mother was solely responsible for the care of the children and she was experiencing mental-health issues that must have presented some risk to them.
It is hard for this Court to avoid the impression that the mother’s capacity to care for the children was hampered by the mental-health problems she was experiencing at this time. The Court has considered the issue of whether the mother was under particular stressors in the time leading up to her hospitalisation which might, for example, not be present in the future. If this were the case, the risk profile for the children would be less concerning.
Regrettably, this is not discernible on the material before the Court. The mother refers to a range of stressors during that period, none of which seem to have any extraordinary features. The stress of the litigation continues. The mother may well have found the process of interviews with both Dr L and Dr F stressful even though both reports, on any objective basis, were encouraging and supportive of the mother. A further report will be prepared by Dr F.
The mother has, no doubt, found extremely stressful the very limited time she has had with the children, but that is something that this Court plans to address. The Court’s impression of the risk of harm to the children is not mitigated by certain matters. The fact that the mother does not appear to have had another relapse is hardly reassuring to the Court at this stage.
The assertion in the mother’s case that her admission was attributable to a medication anomaly is not a matter that the Court is prepared to rely on at an interim hearing— further evidence is necessary, especially from an independent expert. In any event, the material before the Court does raise some concerns about the mother’s compliance with medication, particularly the long gaps in engaging with her own psychologist.
The concerns that the Court holds are not mitigated by the very careful analysis of the facts at the time contained in the Reasons for Judgment of her Honour Judge Neville when she made the orders on 31 March 2020. The case before this Court is entirely different. The events that occurred in November 2020 are a significant change in circumstances. The evidence before this Court is very different.
The risk of harm to the children is in no way mitigated by the fact that Dr F’s report of 2 October 2020 recommended that the children live with both parents equally. Dr F did, of course, consider the mother’s mental health. She had available to her, for example, Dr G’s reports. Whilst Dr F agreed with Dr G’s evaluation, she nonetheless held concerns about the mother’s stress tolerance, an issue that is adverted to several times in the evidence that is referred to by the Court above.
At page 33 of her report Dr F emphasises the importance for the mother’s mental health (and therefore her parenting) that orders support her to achieve a balance between parenting and other aspects of her life. This, in part, underpins her recommendations. There is nothing in Dr F’s report which would have been predictive of the mental-health episode that the mother unfortunately experienced just a few short months after they met.
The Court’s impression about the risk-of-harm issues to the children is also not mitigated by the report of Dr L dated 25 January 2021. Dr L confirms that there are no cognitive issues that would impair the mother’s ability to parent. Nonetheless, at page 7 of her report, Dr L expresses concerns about the mother’s responses being incongruent to clinical observations.
Whilst Dr L was aware of the mother’s recent psychiatric admission, she held some concerns about the mother’s reduced insight into her mental health. It is interesting to observe the issue of incongruence between the mother’s responses and clinical observations was a feature not just observed by Dr L, but by the mother’s own treating psychologist, referred to in the analysis of the evidence above.
Moreover, the Court’s impression about the risk-of-harm issues is not mitigated by the reports from Dr G. Dr G prepared reports annexed to several Affidavits filed 14 January 2020, 30 January 2020 and 8 March 2021, and each of these reports were before the Court.
In the first report, the mother’s solicitors asked Dr G to give his view about whether there was any relevant psychiatric diagnosis and whether the mother was suffering from any psychiatric condition which impaired her ability to care for the children.
By way of summary, Dr G opined that the mother was not suffering from any psychiatric disorder which would, in itself, prevent her from functioning as a capable and effective parent, but did suffer from post-traumatic stress disorder arising from her accident at age 18. He acknowledged that she was, at the time of the report, experiencing some symptoms of anxiety which did not impair her independent functioning ability or parenting capacity.
Referring to the mother’s psychiatric history, Dr G observed that there are several important ‘negatives’ to be noted in relation to this psychiatric history. The mother had never experienced a serious, sustained period of depressed mood, never thought that she would be better off dead; never had suicidal ideation. The mother’s anxiety was reported as being of an intensity which seems generally proportionate to the strain and uncertainty of the situation in which she now finds herself. Dr G thought that it was at a level which was not impairing her role functioning and, therefore, did not qualify for a psychiatric diagnosis.
The second report filed on 30 January 2020 was a response to specific questions raised in the mother’s solicitor’s letter to him. The report picks up some of the concerns expressed by the father in his Affidavit about the mother’s mental health. The father alleged, for example, that the mother had indicated through what she said that she was considering self-harm. Dr G notes that on neither occasion did she in fact self-harm.
He sought to normalise such a statement in certain circumstances such as where people feel trapped by seemingly inescapable circumstances. According to him, that was the mother’s perception at the relevant time. The father expressed concerns about statements suggestive of paranoia. Dr G’s view was that in interview the mother lacked the wariness and underlying suspicion that is typically present in patients with a significant paranoid or persecutory dimension to their presentation.
The father alleged that the mother had told him that her goal was to own a brothel. The mother concedes this. Dr G explains that she claimed she did so at a time of desperation and frustration about the marital relationship, and that she was fantasising about what type of lucrative business she could run after hours to enable herself to become financially independent of the father. He reports that the mother indicated that she was not being genuine about this.
In relation to the father’s concerns about the mother adopting different personalities, Dr G was of the view that the mother did not suffer from Dissociative Identity Disorder. In relation to other allegations the father makes, he notes that the mother admits that she did try to hit the father in the context of an argument and that she did in fact force the father’s friend, Mr N, and his co-worker to sign agreements that they would not disclose her address.
He notes that the mother now considered that this was an ill-judged measure. Based on the mother’s account, Dr G believed that the father was perpetrating coercive and controlling violence. Indeed, there is little in the first two reports which would have been predictive of the mother’s mental-health episode in November 2020. Rather, a reasonable bystander reading these two reports would likely be extremely surprised to hear of the mother’s later mental-health episode.
Conversely, the material before the Court suggests that there were concerns about the mother’s suicidal ideation and there were concerns about the mother’s paranoia, both of which were largely dismissed by Dr G. Dr G’s third report dated 8 March 2021 was clearly responsive to concerns expressed by the father about the mother’s mental health following her admission to hospital in November 2020.
In summary, he refers to the mother’s admission, describing it as a brief psychotic disorder which developed very suddenly against the background of marked and poignant psychological and physical stressors. The Court observes that another way of looking at the history that is in fact portrayed in the summary of the evidence referred to above may be that the psychotic disorder did not develop suddenly, but was the result of a progressive decline in the mother’s mental health.
It is unclear to the Court whether Dr G had available to him the same range of evidence covering the same period that this Court has. Dr G’s prognosis in relation to the mother’s condition is described as excellent, partly based on the transient nature of her psychotic symptoms. However, even Dr G is very clear that the possibility of recurrence over a long timeframe cannot be excluded. Dr G refers to the mother’s insight into her symptoms at the time as suggesting likely competent management of any future episode.
The Court finds this troubling. There is little material that the Court has seen which would entitle it to form the impression that the mother had insight in relation to her symptoms at the time. Indeed, the mother’s knowledge of what in fact occurred in the lead-up to her mental episode seems to be ex post facto. There are a few things that she tells Dr G, duly recorded in his report, that she does not tell the Court in her Affidavit nor does it appear from the objective material that she told others, including her own treating psychiatrist.
The basis of Dr G’s confidence that the mother had insight in relation to her condition at the time is unclear and, from the Court’s perspective, weakens the Court’s view of his confidence about the mother’s ability to competently manage any future episode.
The Court finds it interesting to note that the mother appeared to explain that one of the stressors she was experiencing in the lead-up to her mental-health admission was the loss of power to an outside freezer, resulting in the contents being thawed out. There is no meaningful reference to this in any of the contemporaneous records. Again, it is perhaps a retrospective rationalisation. When the mother told Dr G, “My thoughts didn’t seem logical or normal”, this could not possibly be a contemporaneous insight because of the entirely different picture presented by the hospital records.
When she told Dr G, “I knew something was quite wrong with me”, this was again likely to have been a retrospective rationalisation due to the absence of any contemporaneous record of this sort of acknowledgment. In any event, Dr G’s diagnosis is that the mother is suffering from a Major Depressive Episode likely since about September 2020. He does not specifically identify how he chose that date. He describes this episode as being in remission.
Dr G reports that the mother continues to suffer from the emotional reactions of anxiety and sadness, but that these are understandable as reactions to her distressing personal circumstances, including physical separation from the children. He agrees that the mother suffered a brief psychotic disorder on 14 November 2020, developing as a consequence of severe psychological stress and possibly physical stress.
In terms of prognostic implications and risk of recurrence he felt that the mother had, overall, an excellent prognosis. Dr G acknowledged that in historical terms this was an isolated incident, but explained that it is nonetheless impossible to state that it would not recur. He explains that brief psychotic disorders can recur. He referred to research suggesting that the recurrence rate was about 50 per cent over a time period of three years or more.
He thinks it would be reasonable to prognosticate that, given the factors identified, the long-term risk of recurrence in the mother’s case would be very much less than 50 per cent. Clearly, Dr G believes that the risk of recurrence is a low risk. He then considers what functional impact such a recurrence would have upon the mother’s capacity to care for the children. Here Dr G appears to rely, at least in part it would seem, on the records of the mother’s treating psychiatrist, Dr H, whose report will be discussed below.
Dr H seems to have accepted what the mother told her in interview—that is, that she maintained full insight into the abnormality of her symptoms and was fully cognisant that she required treatment for these. Her insightfulness and cooperativeness was a major determinant in the favourable outcome of this episode.
Dr G described these as psychological qualities which lie at a level superordinate to symptoms themselves and, thus, tends to be enduring. He thus opined that this episode would have a minimal impact on the mother’s capacity to care for the children. In the unlikely event that a recurrence occurred while the children were in her care, he opined that the mother’s insightfulness into her condition, combined with her innate parenting capacities, makes it overwhelmingly likely that she would be able to alert someone in her supportive social network to come to her assistance and provide care for the children as appropriate when she went to receive care for herself.
With great respect to both Dr G and Dr H, the evidence before the Court does not support that sort of confidence. It is possible that both Dr G and Dr H both accepted what the mother told them about her level of insight. The history of the lead-up to the event, what little is known about the event itself and the mother’s treatment do not instil confidence in the Court that the mother would be able to seek out assistance independently in the event that another mental-health episode was imminent. The risk to the children in this regard is unacceptable.
The only evidence before the Court from Dr H is her report dated 2 March 2021. Dr H treated the mother initially in hospital and then after she was discharged. The report indicates that she saw the mother once for follow up via video Telehealth on 20 January 2021. She explains that her report is based on information provided by the mother, the hospital notes and an interview with the mother’s friend, Ms J.
There is not much new information that is provided in this report. Dr H describes what the mother experienced as an abrupt onset of psychotic symptoms in the context of severe psychosocial stressors following a period of depression. The likely diagnosis was Depressive Disorder, PTSD and Brief Psychotic Disorder. She felt it was less likely that this was a chronic psychotic disorder due to the abrupt onset, polymorphic nature of the symptoms and the rapid resolution with full return to premorbid function.
The Court notes with interest that in this report there is no observation about the mother’s insight into her condition at the time as alluded to by Dr G in his report. It is possible that Dr G had access to some other report or record prepared by Dr H which was not before the Court. The report of Dr H is of limited assistance in the context of what the Court is required to do in this interim hearing.
The evidence before the Court leads it to conclude that for the time being, and pending the receipt of further evidence, including an updated report from Dr F, there is an unacceptable risk of harm to the children if they spend unsupervised time with their mother. This tentative conclusion is in no way assisted by the mother’s case and how it was presented, which sought to minimise what the mother experienced not just at the time of the episode in question, but beforehand, as well as minimising the risk to the children.
How, then, is this risk to the children to be managed? The father proposes that the children’s time with their mother be supervised and, because of the practicalities of this, that her time be limited. The Independent Children’s Lawyer also proposed the mother’s time be supervised but on a significantly limited basis and for a short period of time. The mother does not accept the need for supervision, though there was a hint in the submissions of her senior counsel that if the Court was considering this, it should be for a short time only.
The concerns the Court has expressed about the mother’s mental health and the consequent risk of relapse are so great that only supervision can adequately protect the children pending further evidence and order. The mother’s proposal does not address the Court’s concerns. The Independent Children’s Lawyer’s proposal, likewise, fails to address the Court’s concern. It is critically important for these children to spend time with their mother so that the meaningful relationship they have with her may continue.
On the father’s proposal, they would spend time with her twice a week, on Wednesday afternoons and then on either Saturday or Sunday. The Court is satisfied that this will ensure that the children have a meaningful relationship with their mother. The children have been communicating with their mother every day, and thus the Court will make orders to ensure that when they are not physically spending time with her they have the opportunity for this communication to continue.
For the reasons articulated above, the children’s time with their mother needs to be supervised. The father proposed either his parents, the mother’s parents, Ms D or another agreed supervisor. The Court accepts that there may be some, if not many, practical obstacles to the mother’s parents being supervisors, but the full extent of this impracticality was not teased out in submissions.
The order proposed by the father is sufficiently broad to enable the parties to use, if necessary, a range of different supervisors. The order will be made in terms of that generally proposed by the father. The Court wishes to make it very clear, however, that if supervision can be arranged for longer periods of time, then both parents, if they both agree, can extend the amount of supervised time that the children have with their mother.
In this regard I grant leave to file consent orders in chambers. The Court believes that the orders described above, for the reasons stated, are for the time being in the best interests of the children. The emphasis and focus of this decision has been risk of harm considerations and balancing these concerns with the need for the children to have a meaningful relationship with their mother.
Of course, there are other considerations articulated in s 60CC, but they are less significant for the time being. The children may well have views to spend more time with their mother, but that consideration must be subsumed to their safety. There is no doubt that the children have an excellent relationship with their mother. That is not the issue.
Both parents probably have concerns about whether the other has taken or failed to take opportunities to participate in decision-making about the children or to spend time and communicate with them. There was a hint in the evidence about Child Support concerns. There are no issues of practical difficulty and expense of the children spending time with their mother subject only to the availability of supervisors.
The risk of harm considerations that have been the focus of these reasons do raise issues about the capacity of the mother to provide for the needs of the children. At the final hearing there may well be other issues that throw the focus back onto the father’s capacity to provide, for example, for the children’s emotional needs. It is clear that the mother believes that he has perpetrated coercive and controlling violence on her. If this is the case, not only is the family violence itself a relevant consideration, but it also raises issues of parental attitudes towards the responsibilities of parenthood.
At a final hearing, criticism may well be directed towards the father for not doing more to facilitate the mother’s time with the children once she was discharged from hospital. It may well be submitted that his restrictions on the mother’s time was simply a manifestation of his controlling conduct. The level of mistrust between these parents and their inability to communicate effectively reflects poorly on both of them. These are interim orders and, by definition, they do not bring about finality in this matter. The Court sees no reason to deal with parental responsibility.
Turning now to the form of the orders, the father proposes that the orders made 31 March 2020 be discharged. There is no need to discharge the orders, they can simply be suspended for the time being. The time that he proposes is satisfactory subject only to my comments about the parents being able to agree to more supervised time.
The orders in relation to supervision are satisfactory subject, of course, to the parents agreeing to further supervisors. The only concern that the Court would have about potential supervisors relates to Ms J. The regrettable impression formed is that Ms J was quite selective in terms of the evidence she presented to the Court. The concern and support that she has shown to the mother is commendable and, indeed, is to be lauded, but a supervisor needs to have a greater degree of objectivity and focus on the best interests of the children.
The remaining orders proposed by the father are appropriate. There is evidence to justify the making of order 8 which restrains the mother from operating a motor vehicle in which the children are a passenger. Orders 1, 2, 3 and 4 of the orders made on 31 March 2020 will be suspended to ensure there is no inconsistency with the new orders.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 7 April 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Jurisdiction
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Remedies
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