Miranda & Cales (No. 2)

[2021] FamCA 547

FAMILY COURT OF AUSTRALIA

Miranda & Cales (No. 2) [2021] FamCA 547

File number(s):	SYC 8016 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	30 July 2021
Catchwords:	FAMILY LAW – PARENTING – whether interim parenting orders be varied – whether time progress from supervised to unsupervised – consideration of expert evidence – consideration of mental health concerns of the mother – whether appropriate support services in place – risk of harm to the children – importance of a meaningful relationship with both parents – risk considered to be acceptable and managed appropriately if limited overnight time – orders for unsupervised time otherwise appropriate – no order as to costs.
Legislation:	Family Law Act 1975
Cases cited:	Miranda & Cales [2021] FamCA 178
Number of paragraphs:	56
Date of last submission/s:	7 July 2021
Date of hearing:	7 July 2021
Place:	Sydney
Counsel for the Applicant:	Dr Brasch QC
Solicitor for the Applicant:	Watts McCray
Counsel for the Respondent:	Mr Lethbridge SC
Solicitor for the Respondent:	Doolan Wagner Family Lawyers
Solicitor 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:

MR CALES

Applicant

AND:

MS MIRANDA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	30 JULY 2021

THE COURT ORDERS THAT:

1.

The orders made by Justice Altobelli on 17 March 2021 be discharged, save for

order 10.

2.Orders 1, 2, 3 and 4 made by Judge Neville on 31 March 2020 be discharged.

3.The mother forthwith commence spending unsupervised time with the children, X born … 2013 and Y born … 2016 (hereinafter referred to as ‘the children’) as follows:

(a)For a period of 12 weeks from the date of these orders: 

(i)From after school/day-care (approximately 2:30pm) until 6:30pm each Wednesday; and

(ii)From 9am to 4:30pm each Saturday.

(b)For 12 weeks thereafter and pending final hearing:

(i)From after school/day-care (approximately 2:30pm) each Wednesday until before school on Thursday (one night); and

(ii)From 9am each Sunday until before school on Monday (one night).

4.The children live with the father at all other times.

5.Unless otherwise agreed in writing between the parents on Our Family Wizard, all changeovers shall occur as follows:

(a)At school or day-care, with the parent who is concluding their time with the children to deliver them in the morning, and the parent who is commencing their time with the children to collect them in the afternoon; or

(b)In the event changeover is to occur at a time where the children are not at school/day-care, the father is to deliver the children to the driveway of the mother’s residence at the commencement of the mother’s time, and collect the children from the driveway of the mother’s residence at the conclusion of the children’s time with the mother.

6.The Independent Children’s Lawyer is at liberty to contact the children’s play therapist to speak with her about the recommendations in Dr F’s updated report, and has leave to provide the play therapist with a copy of the same.

7.Each parent is to make contact with the children’s play therapist at the earliest opportunity, and to follow any recommendations the play therapist may make from time to time in relation to the children.

8.Leave is granted to the Independent Children’s Lawyer to apply to relist the proceedings on seven days' notice in the event that further orders or directions are required with respect to the implementation of the orders herein, provided that in the event that such liberty is exercised the Independent Children’s Lawyer shall:

(a)Forthwith notify all other parties of the intention to make the request and the reason for same;

(b)Make the request for relisting in accordance with the Family Court of Australia protocol as to communication with chambers; and

(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

9.Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED THAT

A.The Court intends to allocate a final hearing date for this matter as soon as is practicable, noting that an order for expedition was made 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

ALTOBELLI J:

INTRODUCTION

1. This case continues to be about two children, X who is eight, and her sister Y who is five.  On 17 March 2021 I made orders and provided reasons for judgment following an interim hearing which took place on 9 March 2021.  My reasons for judgment were published as Miranda & Cales [2021] FamCA 178. I adopt the background and history of this matter as set out in those reasons. I created this opportunity to further consider what interim orders would be in the best interests of the children following the receipt of an updated expert’s report. These reasons for judgment explain the orders that I have made, pending final hearing.

   BACKGROUND

2. On 17 March 2021 I made orders for the children to spend supervised time with their mother.  These orders have not been entirely successful.  The children have spent time with their mother, but not as consistently as the orders envisaged.  The reason why this has happened is contentious.  The inability to find supervisors seems to be part of the problem.  The mother appears to contend that the father has failed to implement the orders in those terms.  The father appears to contend that the mother has failed to take advantage of the times permitted to her under the orders.  In the absence of cross-examination it is not possible for the Court to gain any realistic understanding of what actually occurred, let alone make findings in relation to the same.

3. On 28 April 2021 Dr F, the single joint expert in this case, prepared an updated report to take into account concerns raised about the children’s welfare arising from the mother’s mental health which were outlined in my reasons for judgment of 17 March 2021.  There is an unexplained delay between this date, and 8 June 2021, when the report actually became available to my Chambers and was released to the parties.  As a result, a further interim hearing was listed on 7 July 2021.

4. In these reasons for judgment the Court will focus on the evidence that was not available to the Court on 17 March 2021.  The Court must make a decision that is in the best interests of these children.  My reasons for judgment of 17 March 2021 set out why the orders made that day were considered to be in the best interests of the children at that time.

   THE COMPETING PROPOSALS

5. The father was represented by his Queen’s counsel, Dr Brasch.  His proposed minute of order, attached to his Case Outline document, sought that the orders made on 17 March 2021 remain in effect, but that in addition to the supervisors identified therein, the mother be at liberty to engage the services of professional supervisors.  The father proposed a number of restraints.  The precise orders sought by the father are set out in the first schedule to these reasons.

6. The mother was represented by her senior counsel, Mr Lethbridge.  The minute of order proposed by her was contained within her Case Outline document and is also reproduced in the second schedule to these reasons.  She contended, in effect, that the orders of 17 March 2020 be discharged and that the children live with and spend time with their father from after-school/day-care each alternate Friday to before school/day-care on the following Thursday.  In effect, this was a shared care arrangement that enabled the children to live with her for eight nights each fortnight and spend time with the father for six nights each fortnight.

7. During submissions, I pressed Mr Lethbridge SC for a proposal from the mother that was more attuned to the recommendations contained in Dr F’s updated report.  Quite correctly he acknowledged that the mother’s proposal does not flow from Dr F’s report, but reflected the mother’s desire to return to the original orders made by Judge Neville on 31 March 2020. He was instructed to communicate to the Court that the mother desired to immediately re-establish time with the children on an unsupervised basis.  The mother was open to starting with something akin to the Independent Children’s Lawyer’s proposal but then rapidly building up to each alternate Thursday after school or preschool to the following Monday before school or preschool, together with overnight time, in the subsequent week.

8. The Independent Children’s Lawyer, Ms Neligan, proposed in her Case Outline document, which is reproduced in the third schedule to these reasons, for the mother to immediately commence unsupervised time with the children, and for a period of three weeks, from after-school/day-care until 6:30pm each Wednesday, and from 9am to 4:30pm each Saturday.  After three weeks this would increase to after-school/day-care each Wednesday until before school on Thursday, and from 9am each Sunday until before school on Monday.  Thereafter, and in alternating weeks, the children would spend time with her from after-school/day-care on Wednesday until before school Thursday, and then from after-school Thursday until before school on Monday.  The mother’s time would progress on an unsupervised basis from no overnights, to two overnights, and then to four overnights, each fortnight.

   THE APPLICABLE LAW

9. The applicable law continues to be that set out in my reasons for judgment of 17 March 2021. Dr Brasch QC in her Case Outline for the father also referred to the case law about risk assessment which the Court adopts.

   THE MATERIAL BEFORE THE COURT

10. In the mother’s case, she sought to rely on the following documents:

    (a)Her Affidavit filed 2 July 2021;

    (b)An Affidavit of Dr J filed 2 July 2021;

    (c)A Tender Bundle of documents marked by the Court as exhibit R2;

    (d)An Affidavit of Dr G dated 8 March 2021 and the corresponding exhibit bundle;

    (e)A Report of Dr H dated 2 March 2021;

    (f)A letter of Dr H dated 30 June 2021 tendered and marked as exhibit R1; and

    (g)A Case Outline document filed on 6 July 2021.

11. In the father’s case, he sought to rely on the following documents:

    (a)His Affidavit filed 5 July 2021 and corresponding exhibit bundle;

    (b)An Affidavit of Ms O filed 5 July 2021;

    (c)An Affidavit of Mr Q filed 5 July 2021;

    (d)A bundle of correspondence tendered and marked as exhibit A1; and

    (e)A Case Outline document filed on 6 July 2021.

12. In the Independent Children’s Lawyer’s case, she sought to rely on the following documents:

    (a)The updated expert report of Dr F dated 28 April 2021 and marked by the Court as exhibit ICL1; and

    (b)A Case Outline document filed on 5 July 2021.

    EXAMINATION OF THE NEW EVIDENCE

    Report of Dr F dated 28 April 2021 

13. Dr F interviewed the parents on 13 April 2021.  In addition she interviewed Dr J, a friend of the mother’s, and had telephone calls with the mother’s treating psychologist Ms T and her treating psychiatrist, Dr H.  

14. Dr F records that the mother presented in a subdued manner, moving slowly and with a flattened affect.  The mother explained to her that she had suffered from brief psychosis when she had lost consciousness and was not perceiving reality.  The mother explained that at the time she was under a prolonged amount of stress, was working too much, was not having enough downtime, and she found that being in the house triggered feelings of stress, anxiety and depression.  She told Dr F about the medication she was on, and that she was seeing her psychologist Ms T about every three weeks, depending on what was happening in her life.  The mother reported that she was working up to 50 hours weekly, but was not studying currently because ‘work’s enough’.

15. Commencing from page 7 of her report, Dr F seems to record information gleaned during an interview with the mother’s friend, Dr J. Dr J reported that, a few months before the mother’s illness in November 2020, the ‘stress of events’ was taking its toll on the mother.  Around October, the mother called her, asking for help as she was ‘feeling too overwhelmed’ by ‘pain, circumstances, not feeling she could cope’ and Dr J assisted with dropping the children to school/preschool.  Dr J was unable to visit for about two weeks in early November and then received another call from the mother saying she was not coping.  She then visited the mother accompanied by her husband.  Dr J found the mother ‘feeling overwhelmed… by logistics… Very tired, just out of bed’ although it was late in the day.  The house was ‘not so clean’ which was unusual for the mother.  Dr J insisted that this was the first time she had observed the mother in a psychotic state.  Nonetheless, Dr J believed that the mother was back to her usual self.

16. Dr F’s conclusions commence from page 9 of the report. She addresses the terms of reference contained in the letter from the Independent Children’s Lawyer.  At her first conclusion she states:

    There was no evidence she currently met criteria for an acute psychiatric disorder from

    •  this presentation

    •  on self-report

    •  feedback from a long-term medical friend (who had recognised the need for Ms Miranda to receive acute psychiatric care at the time of her Brief Psychotic Disorder, diagnosed during her admission 14 November 2020 – 4 December 2020).

    •  her assessment on 20 January 2021 by her treating psychiatrist, Dr H (Dr H’s report dated 2 March 2021) and at a more recent appointment on 23 March, when the sertraline was increased to 75mg (personal communication)

    •  her assessment on 13 January 2021, by neuropsychologist, Dr L, who found no evidence of a psychotic disorder.  Of note (on page 6 of 7), Dr L was concerned Ms Miranda’s “response pattern (on a self-report measure of executive skills impacting day-to-day living) was highly atypical”

    •  her assessment on 5 March 2021 by psychiatrist Dr G for a second medico-legal report. At page 7, he appropriately discussed why Ms Miranda’s Brief Psychotic Disorder (DSM-5) or Brief Reactive Psychosis “could…be referred to as being in remission” because she responded well to medication and had not relapsed.

17. In response to the question about the likelihood of the mother experiencing a further significant mental health episode, Dr F wrote:

    Given her past history, Ms Miranda is at a moderate risk of further episodes of Major Depression and a low risk of again experiencing a Brief Psychotic Disorder.

    Of note, Dr G on page 8 of his report referred to two recent publications about the prognosis of brief psychotic episodes. Based on this information, he opined that given

    •        Ms Miranda’s psychotic illness was a brief first episode

    •         during it she remained insightful that she required treatment

    •         she responded well to the medication

    •         she has remained compliant with medication and

    •         her concurrent severe iron deficiency was treated

    then “the long-term risk of recurrence in Ms Miranda’s case would be very much less than fifty percent”. I would not dispute this conclusion.

    Appropriately, Ms Miranda’s treating clinicians, including her GP (Dr R, appointment 5 January 2021), as well as Dr G and Dr L comment on her significant stress being ongoing.  Stress and pain that overwhelms Ms Miranda will increase the risk of a relapse into acute illnesses.

18. On the question of recommended treatment or services in relation to the mother’s mental health Dr F wrote:

    Ms Miranda is appropriately accessing treatment from her GP, psychologist and psychiatrist.  I question whether three weekly sessions with Ms T is sufficient.  Of note, are the recommendations by Ms T at the 5 February 2021 consultation, when she observed Ms Miranda holding tension in her body to ensure she will not “fall apart if she thinks about things”.

    While Ms T’s recommendations are very appropriate and need to be practised regularly, the most significant stress for Ms [Miranda] currently is the loss of time with her children and the need to find supervisors acceptable to Mr Cales.  These are issues she is unable to resolve unilaterally. (sic)

19. Dr F was also asked to comment on the mother’s willingness to continue engaging with professionals in relation to her mental health.  She said:

    Ms Miranda has insightfully availed herself of mental health services and, I believe, will continue to do so.  Of note, at GP Dr R’s consultation 22 August 2020, she identified her need for “more health services/support groups”.

    Given her chronic pain and the lack of response from the U Hospital pain clinic, her referral could be more proactively followed up by Ms Miranda and her GP.

20. When asked to comment on the mother’s insight about her mental health concerns including the events relating to the hospital admission Dr F stated:

    Without doubt, Ms Miranda was cognisant that she required assistance both before and at the time of her psychotic episode, as discussed.  I note, Dr L discussed in her report (page 7 of 7) that Ms Miranda’s responses had an unusual pattern, which she hypothesised might be the result of “anxiety and depressed symptomology”, as well as her over analysing the questionnaires.

    Orders which assist Ms Miranda to minimise the stress in her life would be of assistance to her mental health.

21. In relation to whether the children are at risk of harm in consequence of the mother’s mental health, Dr F opined:

    There is no evidence the children were at risk of harm from a mental illness.  But, using the information from the Kindergarten teacher and preschool Director (pages 32-33 of my report), if Ms Miranda becomes similarly dysregulated frequently around the children, then they will be psychologically harmed.

    Provided Ms Miranda continues to follow the recommendations of her treating psychiatrist and psychologist, particularly remaining compliant with her medication and practising stress and pain management strategies, her mental health is likely to remain stable and her self- regulation to improve, with consequent positive impacts on her parenting.

    If a future relapse progresses in a similar fashion to her 2020 episode, then probably Ms Miranda will seek appropriate assistance for herself and the children will be safeguarded.

    Distress in the children resulting from changes in their mother’s mental state could be assisted by them receiving age appropriate psychoeducation about her mental health.  They (and their father) would be also reassured by Mr Cales’ early notification of her illness, so he can make himself available to care for them.

22. In terms of updated recommendations, Dr F writes:

    Ms Miranda must become familiar with, and work with, the “play therapist” who has sessions with her daughters.  The clinician who has a family therapist role should assist the parents to respond to the children’s anxieties about any change in their mother’s availability to them, if she relapses.

    For the mental health of both Ms Miranda and the children, their relationships must normalise as soon as possible ie no supervision and a reasonable length of time together.  The girls must be reassured their mother has not abandoned them.

    Their time together could be incrementally increased, to allow a predictable transition for the girls.  This would be especially helpful to them if changes to their parents’ homes take place (Mr Cales was clear he still wanted to move closer to the school, while Ms Miranda described the marital home as “triggering” her anxiety).

    By the end of 2021, the girls need to be settled into living arrangements which allow them to spend equal time with their parents, with all handovers occurring via their preschool/school.  Ms Miranda’s suggested Thursday PM – Wednesday AM schedule sounded workable, particularly if the parents cooperate in the transfer of clothing/homework/information about other activities, etc.

    Through the rest of 2021, before she commences school in 2022, Y would benefit from spending time with her mother rather than in childcare, for example having two days a week with Ms Miranda before they then pick up X from school.

1. Dr Brasch QC, on behalf of the father, submitted the Court would have concerns with Dr F’s recommendations and would be careful to place weight on them in the circumstances of this case.

2. For example, it is not clear from the face of the report that Dr F had available to her my reasons for judgment dated 17 March 2021.  The Independent Children’s Lawyer submitted that the reasons had in fact been sent to Dr F.  That may well be the case, but there is no indication that, if it was received, Dr F read it and took it into account.  This is unfortunate because the concerns that I had in relation to the mother’s mental health, and the evidence on which this was based, was set out in detail in those reasons.

3. For example, it might have assisted Dr F to know that the Court had concerns about the mother minimising her evidence about her mental health issues.  And yet, this is precisely what the mother does at page 5 of the report by presenting a minimalistic account of the circumstances surrounding her mental health admission.  In addition to what the mother told her, all that Dr F had was the mother’s Affidavit of 24 February 2021 containing an account of these events which the Court considered minimalistic in nature.  If Dr F cross-referenced these sources to, for example, the documents produced by M Hospital where the mother had been admitted, she might have been concerned about precisely what the Court was concerned about, that is, the mother’s minimisation of these issues.  The mother’s account of her hospital admission as contained within her Affidavit of 2 July 2021 is certainly more fulsome but, as will be seen, has elements of minimisation to it.  The problem with the mother minimising these events in her engagement with Dr F is that it creates doubt on any conclusion drawn by Dr F based on the mother’s self-report representations.

4. Dr Brasch QC submitted that the Court would be concerned about Dr F’s seeming acceptance of the mother’s representation to her that she attended with her treating psychologist, Ms T, regularly.  An issue raised in the reasons for judgment is the mother’s engagement with her treating professionals.  The documents tendered into evidence that have been produced by, for example, Medicare, create an impression of irregular engagement with Ms T.  Having told Dr F that she was seeing a psychologist three times per week, Dr F questioned whether this was enough.  Interestingly, and reassuringly, in the mother’s Affidavit of 2 July 2021 she deposes to attending fortnightly.

5. Dr Brasch QC submitted the Court would be further concerned about what Dr J is reported to have told Dr F, and in particular, inconsistencies between what was told and the matters identified in my reasons for judgment.  There is some substance to this concern but, overall, the Court is grateful to Dr J for providing more fulsome evidence, both in an updating Affidavit (to be discussed below) and in what she told Dr F.  For example, taking Dr F’s report at face value, Dr J acknowledges that the mother was in a psychotic state in November 2020, something she does not acknowledge in her earlier affidavit.  Moreover, Dr J clarifies in her recorded comments with Dr F that as early as October the mother was feeling so overwhelmed, and not coping, and that Dr J had to assist her with dropping the girls at school/preschool.  Dr J does not, however, tell Dr F that the mother had asked her to ‘take me somewhere to put me down’, as is reported in a M Hospital progress note dated 15 November 2020, subsequent to the mother’s admission.  If Dr F had studied the mother’s admission records, some of these inconsistencies might have been observed, and Dr F might have been more cautious in arriving at her conclusions about the absence of risk of harm to the children, or at least might have been more transparent as to how those conclusions were reached given some of the anomalies in the evidence. Of course it is possible that Dr F did, in fact, study and consider these hospital records but has not referred to them in her report, a matter that makes her reasoning less transparent.

6. At paragraph 25 of the father’s Case Outline document, Dr Brasch QC raises a number of other issues in relation to matters put to Dr F, and seemingly accepted by her.  The Court notes these concerns.  Some of these will be specifically addressed below.

7. The important submission made by Dr Brasch QC is that the methodology adopted by Dr F seems, regrettably, to have been based on an acceptance of what the mother has said.  This is compounded by the fact the Dr F has seemingly relied on reports of the mother’s treating medical professionals who have done exactly the same thing – seemingly accepted everything that the mother has told them.  The significance of this, if it is accepted by the Court, cannot be underestimated.  It would mean that for all practical purposes the weight that could be placed on Dr F’s risk assessment and recommendations would have to be carefully assessed as against the risk assessment conducted in my earlier reasons for judgment.  In short, one wonders what has changed since then.

8. One final example of the questionable foundations for Dr F’s recommendations is her seeming reliance on what the mother told her as to why the psychotic event happened.  The mother told her that she had been under a prolonged amount of stress, was working too much, was not having enough downtime, and was finding being in the house stress and anxiety triggering.  And yet Dr F was aware that the mother was working 40 – 50 hours a week as an allied health worker at the time of the interview, was still living in the house, was still clearly entrenched in litigation with the father about the children, was deeply missing the children, and was contemplating study.  Moreover, whilst the mother told her that she was not currently studying at the time, the mother gave an entirely different account to her friend Dr J who, in her Affidavit of 2 July 2021 states that the mother has since 31 May 2021 undertaken study towards a Bachelor degree which she is managing as well as continuing to work as an allied health worker.

9. An objective appraisal of the evidence would indicate that, in fact, very little has changed in terms of the mother’s personal circumstances leading up to the psychotic event.  Dr F does not seem to adequately acknowledge this.  At point 1a of her report, Dr F acknowledges that the stress and pain that overwhelms the mother will increase the risk of relapse into illness.  Neither the stress, nor the pain that the mother was experiencing immediately prior to the psychotic episode, seems to have abated in any material sense.  Dr F’s risk assessment is hard to understand in these circumstances.  

   Affidavit of Dr J made 2 July 2021. 

10. In paragraph 3 of her Affidavit, Dr J acknowledges that her earlier affidavit may not have been as helpful to the Court as it could have been.  The Court is grateful to Dr J for further evidence.  The mother is clearly very fortunate to have friends like Dr J and her husband.  This evidence provides further background and context about the circumstances leading up to, and immediately after, the mother’s mental health episode.

11. At paragraph 8, for example, she deposes to the mother calling her on 17 September 2020 to request assistance to getting the children off to school.  In relation to what the mother told Dr J, she deposes at paragraph 8: ‘She took me aside and said that she felt overwhelmed and was having difficulty managing because of worsening back and shoulder pain from the car accident in 2008. She also referred to the amount of financial and mental pressure she was under from the court proceedings.’ Dr J remained with the mother whilst her husband Dr K took the girls to school that morning.  Dr J observed:  ‘At that time, there was no indication of hallucinations or delusions.’  Nonetheless, a reasonable inference is that Dr J was still concerned about her friend.  She contacted some further friends, organised for her to follow up with her GP for adjustment to pain medication, to follow up with her usual psychologist, as well as organised some exercise equipment to help ease the back and shoulder pain. Dr J and her husband assisted with house work and preparation of food, and left after the girls had been picked up by the father for his scheduled time with them.

12. At paragraph 9, Dr J deposes that between 17 September 2020 and 14 November 2020, the mother’s pain management improved somewhat, and Dr J and her husband Dr K continued to regularly see her about once or twice a week.  At paragraph 10 Dr J acknowledges that at the start of November there was a period of approximately two weeks where she did not physically see the mother in her home, but kept in touch with her over the phone and by way of messaging.  She deposes that there was no indication that the mother was struggling apart from less frequent replies to messages.  Despite the fact that Dr J was preparing for her final examinations, she visited the mother on 10 November 2020.  In relation to this visit, Dr J deposes:

    I visited her on the 10th of November 2020 and noted then that Ms Miranda might have been struggling with the housework and pain again. Normally, her house is in reasonable order, as much as any house with two active young children would be (i.e. there is usually some toys and craft items on the tables and floors of the living room, there are usually some dishes to be done in the sink with the clean dishes to be unloaded from the dishwasher, there is always some amount of laundry to be done in the laundry room). On that day I noted that there were more dishes than usual that were yet to be done, laundry was starting to pile up, and some food was starting to spoil on the benches – this was not normal for Ms Miranda’s home.’

13. At paragraph 11, Dr J deposes that on 13 November 2020 she had arranged with the mother to go over to her house on 14 November 2020 to assist with some of the housework. The mother acknowledged on 13 November 2020 that she felt that her mental health was deteriorating.  At the time the children were spending time with their father.  Dr J contacted a mutual friend, Ms V, who visited the mother that evening and stayed with her until she went to sleep.

14. At paragraph 12, Dr J explains that she and her husband arrived at the mother’s home just before 11am.  She appeared to be tired and, after letting them into the house, the mother indicated she was going back to bed to rest.  The children returned home at 12pm.  The mother let them into the house.  She prepared lunch for all of them.  When lunch was ready, however, the mother indicated that she was too tired to eat and went back to bed.  The children had lunch with Dr J and her husband Dr K.

15. After lunch, Dr J spoke with the mother in her bedroom and observed that she was quite distraught about a certain paragraph in a previous psychiatric report which turned out to be Dr F’s first report.  The mother said certain things to Dr J which she deposes to at paragraph 13 of her Affidavit.  Dr J observed that the mother was clearly distressed to the point that she said words to the effect: ‘I’m a terrible person’.  The mother also told Dr J that she had been looking at old photos of herself and that: ‘she felt that she could not see anything human in herself.’  At paragraph 14, and clearly referring to the preceding paragraph, Dr J deposes: ‘The only other manifestation of somatic delusions that I observed was Ms Miranda commenting that the brownie she ate earlier that afternoon tasted unusual… On questioning Ms Miranda at that point, there were no other hallucinations, thoughts of self-harm or suicide’.

16. At paragraph 15, Dr J explains that the children came into the room wanting to spend time with their mother.  They could see she was upset.  Both Dr J and the mother explained to them that she was not feeling well in herself at this time, and she needed some time to get better.  Dr J then poignantly describes what X did next: ‘X specifically took one of her walkie-talkie toys and placed one inside the room as she and Y stood outside and paged her several times saying things like: “I love you, mummy,” and “you’re the best mummy.”  Dr J concludes paragraph 15 of her Affidavit by saying: ‘Throughout this time, I did not have concerns about Ms Miranda causing harm to herself or the children as she very clearly acknowledged that she could not care for them in her current state.’  Nonetheless, it is clear to the Court that Dr J was deeply concerned about her friend, and the children.  It is also apparent that the children were aware of their mother’s illness and beautifully demonstrated their love for her.

17. Paragraph 16 of Dr J’s affidavit states:

    ‘By evening, Ms Miranda was quite exhausted with tears and she had gone back to sleep. Dr K and I organised dinner for X and Y, then we gave them a quick shower and got them to bed. Dr K read them a bedtime story each and they went to sleep. I spoke to Ms Miranda again and she agreed that she needed to be assessed at the hospital. At this time I offered her a glass of water and she barely had the energy to drink. This was the water that she later reported she felt was thick in texture, which the psychiatrist listed as a somatic delusion. Ms Miranda and I left her house at 21:30h to go to M hospital, and we arrived just before 22:00h. Dr K stayed with the children at Ms Miranda’s home and reports that they slept through the night.

18. At paragraph 17, Dr J explains that once it became clear that the mother was required to stay in hospital for more than one night, she communicated, or attempted to communicate, with the father to let him know that the children were in her care.

    Affidavit of Ms O made 2 July 2021. 

19. Ms O deposes to having known the father for many years and currently assisting him with paperwork.  She was involved in facilitating property inspections by real estate agents of the family home in which the mother and children live.  On 8 June 2021 Ms O received a telephone call from a real estate agent who had attended the property and inspected the same in order to provide an appraisal.  Ms O deposes at paragraph 13 that the named real estate agent said to her:

    ‘In the current state, the Suburb P property would not be able to be sold as I would not be able to hold open homes as people could not physically walk through it.

    …

    The house is like a hoarder’s house.  There is stuff all over the floor and everywhere.  I can see that there are some mental health issues at play due to the state of the house.

    …

    The pool is black...

20. The Court places no weight on the comments allegedly made by the agent in relation to mental health issues.  Indeed, if this were the only evidence raising concerns about the conditions of the family home, it would receive little weight indeed.  Regrettably, it is not the only evidence.

21. Ms O deposes that on 21 April 2021 she attended the property herself in order to help clear out the workshop to which the father had access.  She observed weeds to be overgrown on the paths, and the house looked untidy and unkempt.  There was a large red rubbish bin overflowing with rubbish right at the front entrance.

    Affidavit of Mr Q made 2 July 2021 

22. Mr Q is a tradesperson who attended the family home on 21 May 2021 to access the workshop.  He deposes to seeing overflowing rubbish bins at the front entrance of the house.  The garden was overgrown.  There was a lot of weeds.  The pool was black.  He observed bottles of alcohol strewn over the floor inside and outside of the workshop.  He saw empty cans of bourbon, Corona, Jack Daniels and what looked like pure blonde and sugar pops.  There were cigarette butts inside of the alcohol bottles.  A number of chairs had been arranged in a circle.  There was other rubbish all over the floor.  He deposes to seeing lights on at the property.  He observed the power to be on while he was there but just as he was leaving, and wanted to close the roller door, the power went off.  He observed the mother leaving the property.

    DISCUSSION

    What are the implications of this new evidence?

23. A recurrent theme in the father’s evidence is that the state and condition of the mother’s home was indicative of her inability to cope both physically and emotionally.  This concern has been largely dismissed hitherto in the proceedings because of the conflicting evidence.  An issue for the Court is whether the state of the mother’s household reflects the state of her physical and emotional well-being, as well as potentially reflecting on her parenting capacity.  The new evidence from Dr J, Ms O and Mr Q, together with further evidence from the father about what the children have reported to him, now raise deeper concerns about this issue.  Quite apart from raising the issue of the physical circumstances in which the children live in the mother’s care, it also raises the issue of the relationship between this and the mother’s mental health.  Dr F was aware of this issue, as the father told her, and Dr J told her, but the mother denied this concern, and Dr F takes it no further on the basis that there was no evidence of the children actually coming to harm in their mother’s care. It is, with respect, a shortcoming of the report.  The Court would prefer a preventative approach.

24. Dr J’s evidence about the period leading up to the mother’s mental health admission strengthens the Court’s impression that there was a period of months during which the mother’s mental health gradually deteriorated, and the episode on 14 November 2020 was the culmination of this.

25. Concerns about Dr F’s report, insofar as it seems to inadequately recognise that the pressure the mother was under in the period leading up to her mental health admission continued to exist on an ongoing basis, have already been noted above.

26. In short, the new evidence only emphasises to the Court the need to proceed with care, rather than with the insouciance that was inherent in the mother’s original proposal to the Court.

    FURTHER ORDERS IN THE BEST INTERESTS OF THE CHILDREN?

27. The Court accepts Dr F’s view that, in effect, the mother’s mental health would be assisted by spending regular and consistent time with the children.  The Court also accepts her view, as well as the submissions made by both senior counsel for the mother and the Independent Children’s Lawyer, that the regime for supervised contact is simply not working for reasons that cannot be established without cross-examination.  The Court’s strong impression is that for as long as the father has input into the supervision arrangements, time between the children and the mother is not likely to occur, or at least, is not likely to occur regularly and successfully.  Another approach will need to be adopted.

28. The Independent Children’s Lawyer submitted that the children would benefit enormously from unsupervised time with their mother, but with the added protection that this be for relatively short periods, though progressing incrementally, if the time is satisfactory.  Dr F was concerned that the children needed to be reassured that the mother has not abandoned them.  Short periods of unsupervised time should certainly achieve this.  Dr F suggested incremental increases in the children’s time with their mother, to allow for more predictable transitions.  Again, this is achievable, subject to how quickly time increases.

29. The Court does not, for the time being, accept Dr F’s recommendation that by the end of this year the children should settle into an equal time living arrangement.  From this Court’s perspective the risk of relapse for the mother remains real.  Dr F recognised the possibility, as did Dr G.  There remain unresolved issues about the mother’s mental health.

30. The Court accepts Dr F’s view, supported by the Independent Children’s Lawyer, that before Y starts school next year, she should be spending time with her mother rather than in child care.  As a matter of general principle, that should be implemented.

1. The mother should commence spending unsupervised time with the children immediately.  The Independent Children’s Lawyer proposed that this occur from after-school/day-care until 6:30pm each Wednesday, and from 9am to 4:30pm each Saturday.  The Court will make such an order.  If it proceeds satisfactorily, and uneventfully, for a period of 12 weeks, the mother’s time can increase to include overnight time.  The Independent Children’s Lawyer proposed that it be overnight from after-school on Wednesday to before school on Thursday each week, and then from 9am on Sunday to before school on Monday each week.  The Court will make such an order, until the final hearing.  The Court is not, however, prepared to progress the children’s time further than that, at this stage. In relation to Y, however, for example she is presently attending childcare on Wednesdays. She would be better off spending that time in the mother’s care.  This allows for precious one-on-one time to be spent each week.

2. The Court accepts that even this proposal is not without risk.  However, it is an acceptable risk.  There is a safety net for the children.  They will continue to attend school and childcare.  They will spend most of their time in the father’s care.  The mother’s support network, particularly Dr J and her husband Dr K, appears very supportive.

3. The minute of order proposed by the Independent Children’s Lawyer will form the template for the further orders that the Court will make.

4. This matter remains in my docket and, as I have indicated to the parties, will be heard this year.  I am unable to indicate precise dates at this time.  The case could benefit from being referred for a family dispute resolution conference with a family consultant and registrar.  There has been enough intervention from the Court for the issues to be apparent.  I will raise this with the parties when these reasons for judgment are delivered.  These orders are to commence immediately after they are made in Court.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

Associate:                  

Dated:  30 July 2021

FIRST SCHEDULE

FATHER'S MINUTE OF ORDER SOUGHT – 7 JULY 2021

Urgency

1. The matter be listed for a final hearing on an urgent basis.

Interim Orders

2. The Orders made by His Honour Justice Altobelli on 17 March 2021 remain.

3. In addition to the supervisors identified in the 17 March 2021 Orders, the Mother be at liberty to engage the services of professional supervisors to supervise her time with the children, at her cost.

Restraints

4. The Mother is restrained from utilising Mr S Miranda as a supervisor.

5. The Mother is restrained from discussing these proceedings or any aspect of the parties' relationship with the children, or in their presence or hearing, or permitting any third person to do so.

6. The Mother is restrained from denigrating or criticising the Father and/or members of his family to and/or in the presence of and/or within the hearing of the children, or permitting any third person to do so.

7. The Mother is restrained from allowing the supervisors to use any form of physical discipline on the children.

THE COURT NOTES THAT:

A. The Father continues to facilitate, and continues to encourage, for the children to spend as much time with the Mother as reasonably possible, provided:

a. The Mother's time is supervised;

b. The Father is provided with adequate notice of such visit;

c. The children continue to attend their after school activities;

d. The children are fed nutritious meals and provided with water while in the Mother's care; and

e. The children have access to clean bathroom facilities.

B. There is no restraint on the having Mr S Miranda presence (but not as supervisor) during the times when the children spend time with the Mother.

SECOND SCHEDULE

INTERIM ORDERS SOUGHT BY THE MOTHER

Until further order:

1. That the Orders dated 17 March 2021 be discharged.

2. That Order 2 of the Orders dated 31 March 2021 be varied to provide that:

2.1 the children live with the mother and spend time with the father from after school or day-care on each alternate Friday to before school or day-care the following Thursday.

2.2 notwithstanding proposed Order 2.1, Y spend time with the mother until she commences school in January 2022, from 9am or the commencement of day-care to 3pm or the conclusion of day-care, rather than attending day-care on two (2) days each week.

3. That no later than 6pm on the date on which this Order is made the Father return the children, X born … 2013 and Y born … 2016 to the mother for them to resume spending time with the mother in accordance with these Orders.

4. That a Recovery Order be issued for the children X born … 2013 and Y born … 2016 pursuant to section 67Q of the Family Law Act.

5. That the Marshall and all officers of the Australian Federal Police and all officers of the police and all forces of the states and territories be authorised and directed with such assistance as they require and if necessary by force to:

5.1 Stop and search any vehicle, vessel or aircraft and search premises or places for the purpose of finding either or both of the children;

5.2 Recover the children;

5.3 Deliver the children or either one of them to the Mother;

5.4 Arrest without warrant the father in the event that the father again removes, retains and / or takes possession of the children or either one of them otherwise than in accordance with the Court Orders; and

5.5 Stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any reasonable time cause to believe that one or both of the said children may be found.

6. That the recovery order remain in the Sydney Registry to issue on notice to the Registrar that the father has failed to comply in returning either or both of the children pursuant to the Courts Orders such notice to be sufficient if provided to the Registrar by the mother’s solicitors in writing.

7. That Order 4 of the Orders dated 31 March 2020 be varied to provide that all handovers occurring on school days occur at school or day-care and that all handovers not occurring on school days otherwise occur in accordance with the Orders dated 31 March 2020.

8. That the father pay the mother’s costs of and incidental to this application.

THIRD SCHEDULE

1. The orders made by Justice Altobelli on 17 March 2021 be discharged.

2. Orders 1, 2, 3 and 4 made by Judge Neville on 31 March 2020 be discharged.

3. The mother spend time with the children as follows:

a) For a period of three weeks from the date of these orders:

i. From after school / day-care (approximately 2:30pm) until 6:30pm each Wednesday; and

ii. From 9am to 4:30pm each Saturday.

b) After three weeks and for a further three weeks:

i. From after school / day-care (approximately 2:30pm) each Wednesday until before school on Thursday (1 night); and

ii. From 9am each Sunday until before school on Monday (1 night).

c) Thereafter in alternating weeks, with the cycle commencing on the Wednesday:

i. From after school / day-care (approximately 2:30pm) on Wednesday until before school on Thursday (1 night) and each alternate week thereafter; and

ii. From after Thursday (approximately 2:30pm) until before school on Monday (4 nights) and each alternate week thereafter.

4. The children live with the father at all other times.

5. Unless otherwise agreed in writing between the parents on Our Family Wizard, all changeovers shall occur as follows:

a) at school or day-care, with the parent who is concluding their time with the children to deliver them in the morning, and the parent who is commencing their time with the children to collect them in the afternoon; or

b) In the event changeover is to occur at a time whether the children are not at school / day-care, the father is to deliver the children to the driveway of the mother’s residence at the commencement of the mother’s time, and collect the children from the driveway of the mother’s residence at the conclusion of the children’s time with the mother.

6. The Independent Children’s Lawyer is at liberty to contact the children’s play therapist the speak with her about the recommendations in Dr F’s updated report, and has leave to provide the play therapist with a copy of the same.

7. Each parent is to make contact with the children’s play therapist at the earliest opportunity, and to follow any recommendations the play therapist may make from time to time in relation to the children.