Mornony & Nicolle

[2022] FedCFamC1F 293

Federal Circuit and Family Court of Australia

(DIVISION 1)

Mornony & Nicolle [2022] FedCFamC1F 293

File number(s):

MLC 6366 of 2019

Judgment of:

WILSON J

Date of judgment:

24 March 2022

Catchwords:

FAMILY LAW – PARENTING – mother’s application for sole parental responsibility or in the alternative, unsupervised time with the children – application dismissed.    

Legislation:

Family Law Act 1975 s 60CC(2)

Cases cited:

Marvel & Marvel (2010) 43 Fam LR 348

Eaby v Speelman [2015] FamCAFC 104

Deiter & Deiter [2011] FamCAFC 82

Redmond & Redmond [2014] FamCAFC 155

Pollard and Nordberg [2019] FamCA 365

Division:

Division 1 First Instance

Number of paragraphs:

21

Date of hearing:

24 March 2022

Place:

Melbourne

Counsel for the Applicant:

Ms A. Goldthorp

Solicitor for the Applicant:

Coote Family Lawyers

Counsel for the Respondent:

Mr C. Horsfall

Solicitor for the Respondent:

RRR Lawyers

ORDERS

MLC 6366 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORNONY

Applicant

AND:

MS NICOLLE

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

order made by:	WILSON J
DATE OF ORDER:	24 MARCH 2022

THE COURT ORDERS THAT:

1.The mother’s application in a case filed on 21 February 2022 is dismissed.

2.On or before 4:00pm on 31 March 2022 the parties must formulate agreed trial directions.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mornony & Nicolle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. The trial of this proceeding has been fixed for the second part of September 2022. 

2. The mother has applied for the determination, between today and the trial, of applications for her to have sole parental responsibility for the children and for the father to have limited time.

3. The Independent Children’s Lawyer (“ICL”) opposed the mother’s application.  The father opposed the mother’s application.  The expert’s evidence in this case opposed the mother’s application. 

4. For the reasons that follow, I take the view that –

   (a)all contested parenting issues in this proceeding must be determined after a trial of this proceeding in late September 2022 as presently fixed;

   (b)it is inappropriate to determine, at this interlocutory juncture, the mother’s applications presently before me;

   (c)no irremediable prejudice is occasioned to the mother by so doing;

   (d)at all events, irrespective of the wishes of the mother, the critical persons whose interests must be examined are the children’s;

   (e)even on this interlocutory application, a risk exists of emotional or psychological harm to the children if I were to accede to the mother’s application brought in her 21 February 2022 application in a proceeding;

   (f)the primary consideration in s 60CC(2) of the Family Law Act of protecting the children from harm predominates over the consideration of ensuring, as far as possible, that the children have a meaningful relationship with both parents; and

   (g)while presently untested at trial, the view of Dr B about the mother’s psychiatric issues indicates to me that, at this stage until trial, the status quo should be preserved, with the consequence that the mother should have no time with the children.

   relevant Background

5. The father is 41, the mother 35, the eldest child 8, and the youngest child 6. 

6. The parents commenced living together in June 2012.  They separated in May 2018.  The children then lived with the mother and spent time with the father following an intervention order in November 2018. In July 2019, the parties agreed on shared care.  Following the production of a psychiatric report in October 2019, the mother had supervised time with the children.  In January 2022, a further psychiatric report was obtained.  The mother based her contentions in this application on the gravamen of the January 2022 psychiatric report, arguing in essence, that she posed no risk to the children. 

7. Dr B’s psychiatric assessment of the mother is dated 11 November 2021.  Relevantly synthesised, Dr B reported as follows –

   (a)in October 2019, he diagnosed the mother with a delusional disorder (persecutory type) and a borderline personality disorder, and he considered she needed psychiatric treatment;

   (b)Dr B saw the mother on 27 October 2021 at which time she challenged Dr B on his assessment that she appeared unwell;

   (c)the mother refused to accept that the father’s urine and hair follicle tests had been consistently negative;

   (d)the mother remained emotionally distressed;

   (e)she remained scared about the future;  and

   (f)she appeared anxious and occasionally exhibited flashes of irritability. 

8. Dr B reported that Ms C assessed the mother as being “psychologically and emotionally an unsafe parent”.  He said the mother’s borderline personality disorder was in partial remission. 

9. Importantly, Dr B said the following –

   Having assessed (the mother) on this occasion and in line with Ms C’s most recent assessment, I remain of the view that a lack of awareness and insight continue to pose a risk to her ability to manage and understand the children, and in particular, to support the relationship between them and their father.

   The Father’s Contentions

10. Counsel for the father argued that the mother was not engaged in treatment for her borderline personality issues.  It was also submitted on behalf of the father that Ms C’s report in December 2019 highlighted –

    (a)that the children’s time with the mother should be limited in order to ameliorate the impact of her behaviour on the children;

    (b)supervised time was appropriate;

    (c)the mother needed to engage in therapy;  and

    (d)the mother was psychologically and emotionally an unsafe parent.

    The ICL’s Contentions

11. Counsel for the ICL supported the submissions of counsel for the father.  Each urged me to dismiss the mother’s application. 

    The Mother’s Contentions

12. On behalf of the mother, counsel sought interim orders pending the hearing and determination of the trial in one of two alternative forms.  In the first alternative, the mother sought orders discharging the requirement for her time to be supervised.  She also sought orders for sole parental responsibility.  She sought orders for the children to live with her and for the children to spend time with the father according to a particular formula. 

13. If I did not make orders in those terms, as her second alternative, the mother sought orders for equal shared parental responsibility of the children, that they live with the father and that they spend time with the mother in accordance with a different regime, all of which was to be unsupervised. 

14. In submitting that the requirement that supervised time be removed, counsel for the mother advanced a collection of submissions.  Those included the following:

    (a)that the original orders did not contemplate supervision for another two years;

    (b)Dr B’s findings supported the removal of restrictions;

    (c)the father failed to promote time as between the children and the mother;  and

    (d)the father failed to regulate the children’s behaviour.

15. Rather ambitiously, counsel for the mother submitted as follows –

    There is no need to protect the children from the mother against any physical or psychological harm.

    Consideration

16. I disagree with the mother’s contentions.  Section 60CC requires me to do precisely as it states, that is to say, have regard to the protection of the children from emotional and psychological harm.  I am persuaded that the mother poses a risk of psychological harm to the children that is based on both the evidence of Ms C and of Dr B.  The fact that the mother’s borderline personality disorder may be in remission does not negate the risk plus Dr B embraced Ms C’s expression of concerns. 

17. It would be an abdication of my duties and it would be an act contrary to s 60CC to make orders as suggested by the mother for –

    (a)unsupervised time; or

    (b)sole parental responsibility. 

18. The regime that currently applies will run until the trial of this proceeding. In making those orders, I have considered all aspects of s 60CC(2) and the additional considerations set out in s 60CC(3). Accepting as I do the desirability of making orders that will promote the children having a meaningful relationship with both parents, that consideration in s 60CC must always be subordinated to concerns about physical or emotional risk of harm to the children. Here, the risks posed by the mother’s emotional and psychological fabric are the subject of specific evidence by Dr B and Ms C. I cannot ignore those risks.

19. In saying that, I recognise that the mother has, through her counsel, pressed forcefully (although perfectly properly) for the evidence of Dr B and Ms C to be read down.  The mother contests the observations of Dr B and Ms C concerning the mother’s capability to care for the children between now and the trial of this proceeding.  The mother wishes me to accept unreservedly her version of events, especially in relation to matters bearing upon her psychological and emotional state.  She wishes me to prefer her version of the evidence on point, to the extent that it conflicts with the contrary version of the evidence on the same point as given by Dr B and by Ms C.  Well-established learning in this court has held that, on an interlocutory application such as this, a judge in my shoes should approach the resolution of conflicting evidence with great circumspection and thereby avoid making findings of fact on contested issues.[1] 

    [1] Marvel & Marvel (2010) 43 Fam LR 348, Eaby v Speelman [2015] FamCAFC 104, Deiter & Deiter [2011] FamCAFC 82, Redmond & Redmond [2014] FamCAFC 155 and Pollard and Nordberg [2019] FamCA 365to name a few.

20. Even if I were to accept the mother’s evidence about her capacity to care for the children in a safe manner, I would nevertheless need to weigh that evidence against the contrary medical and psychological evidence from Dr B and Ms C.  Given that I must not make findings on a contested interlocutory application, it seems to me that the most appropriate course is to make directions for the speedy determination of this proceeding on the dates already fixed for trial. 

21. I require the parties to formulate agreed trial directions by 4:00pm on 31 March 2022, providing a minute of those agreed directions to my associate.  The standard form directions that I require to be completed will be emailed to the solicitors for the parties.  In all other respects, the mother’s application in a proceeding is dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       24 March 2022