Orenstein and Maas

[2017] FCCA 1526

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORENSTEIN & MAAS [2017] FCCA 1526

Catchwords:
FAMILY LAW – Interim parenting – where serious concerns about the mother’s mental health – where serious concerns about the father perpetrating family violence.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

Applicant: MR ORENSTEIN

Respondent: MS MAAS

File Number: WOC 426 of 2017

Judgment of: Judge Altobelli

Hearing date: 20 June 2017

Date of Last Submission: 20 June 2017

Delivered at: Wollongong

Delivered on: 14 July 2017

REPRESENTATION

Solicitors for the Applicant: Carter Ferguson Solicitors

Solicitors for the Respondent: Melea Mullard Lawyers

Solicitors for the Independent Children’s Lawyer: Acorn Lawyers

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Mother deliver the children [X], born (omitted) 2014 and [Y], born (omitted) 2015 (‘the children’) to the Father within 72 hours. 

2. The children live with the Father.

3. The Father have sole parental responsibility for the children.

4. The children spend supervised time with the Mother as follows:-

   (a)From 9.00am Sunday to 6.00pm Monday each week; and

   (b)At other times as agreed between the parties

   with such time to be supervised by the Maternal Grandparents, or either of them, or any other person that the parties agree to, or the Independent Children’s Lawyer nominates, on the provision of an undertaking in a form provided by the said Independent Children’s Lawyer.

5. The Mother continue to attend upon her treating psychiatrist, General Practitioner and any other medical or allied health professional recommended by either her treating Psychiatrist or General Practitioner and comply with all aspects of treatment recommended by such medical professionals.

6. The Mother forthwith provide to the Father a written authority empowering him to contact and receive information and reports from the Mother’s treating medical practitioners only for the purposes of obtaining information regarding their views on the Mother’s ability to appropriately care for the children, unless the Mother expressly authorises the release of additional information.

7. If at any time after an initial three (3) month period from the making of these Orders the Father receives information from the Mother’s treating psychiatrist(s) that they consider her to be capable of caring for the children on an unsupervised basis, and provide a report to this effect stating the frequency and duration they consider to be appropriate, then the parties shall attend upon mediation either through Legal Aid NSW or such other service to discuss the possibility of the Mother’s time with the children increasing and becoming unsupervised.

8. The Mother undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

9. Both parents use their best endeavours to ensure that the children are not exposed to violence, or that no person is behaving in a violent manner around the children.

10. In the event the Mother does not return the children in accordance with Order 1 above, liberty is granted to the Applicant and the Independent Children’s Lawyer to re-list the matter on 24 hours’ notice.

11. The matter be adjourned to 24 November 2017 at 9.30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 426 of 2017

MR ORENSTEIN

Applicant

And

MS MAAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the interim orders that the Court has made in relation to two children:  [X], born (omitted) 2014, who is 3 years old, and her younger sister, [Y], born (omitted) 2015, who is 2 years old.  The Court must decide where the children live, and how much time they should spend with the parent with whom they are not living.  These are temporary orders only.  At a final hearing the evidence might require the Court to make a different order.  The exercise before the Court is one of risk assessment and management.  Nominally, the Orders are in the best interests of [X] and [Y].  In reality, the Orders represent the least of the worst alternatives for them.

Background

1. The children’s father is the Applicant in this case.  He is 28 years old and lives in the (omitted) region of New South Wales.  The children’s Mother is the Respondent.  She is 26 years old, and lives in the (omitted) region of New South Wales.  The parents commenced a relationship in May 2011.  The relationship was a tumultuous one, with several separations and reconciliations until the relationship ended in separation for the last time in December 2015.  The children presently live with their mother, but they have spent extended periods of time with their father, particularly when she the Mother was unwell.

2. Even though these are interim proceedings, and the Court’s capacity to make findings is greatly circumscribed, the picture that is created by looking at the evidence of both parents, as well as the documents produced on subpoena, is that this was a turbulent relationship that involved family violence, mutual at times, as well as drugs and alcohol, also mutual at times. 

3. Since separation, the children have primarily been in their mother’s care.  She has experienced longstanding mental health problems, and has had two psychiatric admissions - one in 2013, and again in 2017.  The concerns for the Mother’s mental health precipitated the present proceedings.  The Father wants the children to live with him and spend time with their mother.  The Mother believes that the children should live with her and continue to spend time with their father.

4. The only Order that has been made was made by the Court on an interim basis on 1 May 2017.  The children were ordered to live with their mother and spend time with their father.  This Order has largely been complied with.

5. The Maternal Grandparents have had substantial involvement in the upbringing of the children.  The Maternal Grandfather has provided an affidavit in support of the Mother’s case.  The Maternal Grandmother’s involvement in these proceedings is in another fashion which will be discussed below.  The impression created from the evidence is that the Maternal Grandparents have a different perspective about the mental health of their daughter.  The Maternal Grandfather does not enjoy a good relationship with the Father.

Competing Proposals

1. As outlined above, the Mother would like the children to live with her, and spend time with the Father.  She is presently living with the Maternal Grandfather.  The Father wants the children to live with him, and spend time with the Mother, implicitly on the basis that she continues to be supported by the Maternal Grandfather.  The Independent Children’s Lawyer supports the Father’s proposal, but suggests that, in fact, the children might be able to spend more time with their mother than initially proposed, subject to her having the support system of the Maternal Grandfather in place.

The Material Before the Court

1. The Applicant relied upon the following material:

   a)Affidavit of the Father, filed 20 April 2017;

   b)Affidavit of Mr J, filed 16 June 2017; and

   c)Affidavit of Ms D, filed 16 June 2017.

2. The Respondent Mother relied upon the following material:

   a)Notice of Risk filed 15 June 2017;

   b)Response filed 15 June 2017;

   c)Affidavit of the Mother, sworn 1 May 2017;

   d)Affidavit of the Mother, sworn 16 June 2017; and

   e)Affidavit of Mr G, sworn 16 June 2017.

3. The following material was tendered to the Court:

Exhibit No.	Description of Exhibit/MFI
A1	Documents produced by (omitted) Hospital
A2	Documents produced by (omitted) Private Hospital
A3	Documents produced by NSW Police
A4	Documents produced by FaCS

The Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975 (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.

2. 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.

3. 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.

4. 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)     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)     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) 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.

5. 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.

The Case Law

1. 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".

1. 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.

2. 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.

3. 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.

Meaningful Relationship

1. In reality the amount of material presented before the Court from each parent, about the nature of their relationship with the children, as well as the nature of the other parent’s relationship with the children, is minimal.  All the Court can do is to imply from the proposals that each makes to the Court about the other parent spending time with the children, that they believe the relationship to be meaningful, and one that should be encouraged.  Doing the best the Court can from reading the affidavits filed by the parents, each seems committed to promoting a relationship between the children and the other.  This is notwithstanding the Mother’s concerns about the Father’s family violence, or the Father’s concerns about the Mother’s mental health.

2. The Court believes that the meaningful relationship which the girls appear to enjoy with both parents will continue on any proposal currently before the Court.

Protecting the Children From Harm

1. This was very much the focal point of the evidence, and the submissions made.  Both the Father, and the Independent Children’s Lawyer, strongly submit that the Court would have such concerns about the current state of the Mother’s mental health, that it would, of necessity, conclude that there is a risk of harm in her care, and the children should be placed with the Father, notwithstanding the significant change this would bring about in their lives.

2. Having carefully considered the evidence and, in particular, the material produced on subpoena by the hospitals that the Mother had been admitted to in 2013, and 2017, as well as by the Mother’s treating psychiatrist, the Court concludes that there is indeed a risk of harm to the children in the Mother’s care.  The Mother’s superficial treatment of her mental health issues in her affidavit is surprising, to say the least.  The only conclusion that the Court can reasonably reach in the circumstances is that she lacks insight into the nature and extent of her own mental health problems, and the manner in which this might affect her parenting of the children.

3. Both in 2013 and 2017, the Mother has had mental health admissions.  In 2013, the Mother’s admission probably was voluntary (as she contends).  She expressed the desire to self-harm, as well as to harm others.  She had difficulty controlling her anger.  It is clear that the relationship between the Mother and the Maternal Grandparents was under a great strain – indeed, her feelings of anger towards her parents were plainly recorded.  She was in hospital for about 9 days, but the records related to this admission and her subsequent treatment give rise to concerns about the Mother’s compliance with the medication she was given.

4. The Mother had her second mental health admission between 10 and 20 February 2017.  The records suggest that she presented with increasingly bizarre behaviour.  The clinical impression was a drug-induced psychosis, and borderline personality disorder.  The drug test revealed positive for amphetamines.  A record was given of past, heavy poly-substance abuse.  What is concerning is that even though amphetamine was found in her system, both she and her family denied drug use.  The records suggest that she was observed to have no insight, poor judgment, was impulsive and disorganised.  Even on the day of her discharge she was recorded to be agitated, swearing out loud and verbally abusive.  The records contain the Mother’s own admissions of her aggression and anger but also an assertion that she had never harmed her children.

5. Of great concern to the Court is the record of the Mother’s treatment after discharge in February 2017.  The file of her treating psychiatrist, Associate Professor D, was in evidence.  Also in evidence was email communication between the Maternal Grandmother, and Associate Professor D.  As at March 29, 2017 for example the Maternal Grandmother was expressing concern that the Mother was not taking her medication.  The email of that date states:

   She has not been compliant with taking the Abilify.  She has stayed with me today and I have told her she cannot stay here again if not taking medication.  She has been swearing and screaming and I cannot tolerate or cope with this behaviour.

   The Mother asked Associate Professor D if her medication could be injected.  As at 29 March 2017 even the Maternal Grandmother described the Mother’s behaviour as “intolerable”.

6. A further email dated 3 April 2017 continues on the same theme.  The major concern was that the Mother was not medication-compliant.  Again, the Maternal Grandmother suggested the need for her medication to be injected.

7. A letter from Associate Professor D, of 2 March 2017, records the fact that Associate Professor D saw the mother on 23 March 2017:

   She presented in an overtly psychotic state, with some thought disorder and a clear lack of insight.  The presumptive diagnosis, in the absence of recent drug use, is of schizophrenia and it is imperative that she continue on an antipsychotic.

8. The Maternal Grandmother’s email of 5 May 2017, to Associate Professor D, reports an improvement with the Abilify injection.  The Maternal Grandmother, however, states as follows:

   Around week 3, though, [Ms Maas] seemed to be getting worse i.e. wincing and nodding her head again, and more talking to herself.  She is also still displaying a change in voice tone and expression when she feels threatened or unhappy with things she doesn’t like to talk about, or asked about.  She displays a monotone, expressionless, matter of fact angry voice.  It’s like a split/multiple personality.

   The Maternal Grandmother wondered whether the Mother’s medication needs to be increased, or used more frequently.

9. The objective material before the Court is quite disconcerting.  The relevant medical records had been produced to the Court well in time for the Mother to address the obvious concerns that are raised by them.  Indeed, the Mother’s most recent affidavit was filed on 16 June 2017.  So what does the Mother’s own evidence say about her mental health?  At paragraph 11 of her affidavit of 16 June 2017, she states:

   I have regularly been attending upon my GP, as well as my psychiatrist, and I am complying with my mental health plan and taking my medication.  It has since been discovered that a different GP that I attended upon had been slowly weaning me off my medication.  This coincided when I was hospitalised early this year, in February 2017.

10. This is quite a bland, indeed quite inadequate, explanation in response to clear matters of concern raised, especially by the file of her treating psychiatrist, Associate Professor D.  The Mother’s hypothesis that her February 2017 mental health breakdown was attributable to medication issues does not explain, for example, why she was not medication compliant.  Indeed, the Mother’s interesting hypothesis might have had more weight if it had been expressed by her own doctor.  But there is no record of this.

11. Perhaps of even greater concern to the Court is the affidavit of the Maternal Grandfather filed 16 June 2017.  He explains that he has been living with his daughter and the children in a granny flat.  At paragraph 13 he deposes to:

    I believe that I have always acted in [Ms Maas]’s children’s best interests, and put their needs and safety and protection first.  I have tried to help both [Ms Maas] and [Mr Orenstein] care for the girls since their birth, and I have developed a very close and loving relationship with the girls.

12. At paragraph 15, and pertinent to the issue of the Mother’s mental health, the Maternal Grandfather deposes:

    As far as I’m aware, [Ms Maas] has been actively maintaining her mental health condition.  She has been maintaining her appointments with her GP and her psychiatrist, some of which I have attended, and she has been following her mental health care plan.

13. The strange dissonance between the evidence of the Maternal Grandmother and Maternal Grandfather is apparent.  At one stage, only a few months ago, the Maternal Grandmother was writing to Associate Professor D in terms that would suggest a mental health crisis for the Mother.  Strangely, the Maternal Grandfather mentions nothing about this.

14. The Court believes that in a situation where the Mother plainly does not acknowledge, or at the very least seeks to minimise, her mental health issues, managing that risk is made far more difficult when the person who is there to assist her seems to engage in the same level of minimisation.  With respect to the Mother, her case would have been far stronger if she had been forthright with the Court about the true extent of her mental health issues, including a comparatively recent relapse, and set out the support systems in place to assist her.  What appears to have in fact happened, however, is an attempt to gloss over the obvious issues that exist.

15. The Court takes no solace whatsoever in the submissions made on behalf of the Mother.  The Department of Family and Community Services has closed its file.  That does not mean, of course, that the Department has the same amount of information before it as the Court does about the Mother’s mental health.

16. All the Court can do, under the circumstances, is to form the very strong impression that the Mother’s health is a risk of harm for these children, at least for the time being.  That risk is not moderated by the involvement in the children’s lives of the Maternal Grandfather.  The absence of the Maternal Grandmother, as a witness in the Mother’s case, is curious.  The Maternal Grandparents do not, therefore, provide the level of reassurance to the Court that it would look for if the children were to remain in the Mother’s care.  Subject to the provision of an adequate undertaking, the Court might be reassured about their role in monitoring the Mother when the children spend time with her.

17. The risk of harm analysis, however, is not limited to the Mother’s mental health.  The aggregated material before the Court does suggest that the Father has been violent to the Mother, possibly even in the presence of the children, in the past.  The Court acknowledges this.  It nonetheless concludes that, on balance, there is least risk to the children from the Father’s family violence (none of which appears to have been overtly directed towards them), than there is a risk of harm to the children from the Mother’s unstable mental health.  It is never an ideal outcome for the Court to place children in the care of a parent whom it suspects may have perpetrated family violence.  Ideal outcomes are hard to come by in these cases.

Other Considerations

1. It must be apparent from the above that the Court believes that risk of harm considerations are the predominant consideration, as they should be in this case. Nonetheless, the Court has regard to other considerations under s.60CC. As foreshadowed above, both parents seem to respect the other’s relationship with the children. Moving the children into the Father’s care, at least for the time being will be a significant change for them but one that is warranted under the difficult circumstances of this case. Even though the Mother lives in the (omitted), and the Father in the (omitted), there appear to be no issues of practical difficulty and expense. There are concerns about parental capacity that are inherent in the matters discussed above. A complete assessment of the Mother’s mental health, in the context of parenting capacity, will need to be the focus of expert evidence in this case.

2. A preliminary impression is formed that there has been family violence in this case, and this may have a far greater impact on the final outcome, subject to expert evidence, than it does at the moment, in interim proceedings.

Parental Responsibility

1. The Father seeks sole parental responsibility.  Neither the Mother, nor the Independent Children’s Lawyer, makes a proposal in this regard.  Despite the issues raised in this case, the Court does not believe the evidence before it should justify making an order for sole parental responsibility.  That is a matter for another day.

What Order for the Children to Spend Time With Their Mother?

1. The Father’s proposal, as outlined in his case outline document, is that the children spend time with their mother from 9 am Sunday, to 6 pm Monday each week, and at other times as agreed but subject to the Mother continuing to attend on her treating doctors and being medication-compliant.  The Father expressly leaves open the possibility of revisiting these arrangements once he, and presumably the Court, can be satisfied about the Mother’s mental health.  It is clear in his proposal that he believes the children should spend time with their mother, supervised by someone.  The Father proposes it be himself or his nominee.

2. The Court does not accept this is warranted or, in any event, a good thing.  Provided the Mother is able to get an undertaking (in a form proposed by the Independent Children’s Lawyer) from her parents, the Court is satisfied that they will be sufficiently protective of the children during the relatively short periods that the children spend with their Mother.  The order will therefore provide for supervision to be provided by the Maternal Grandparents or either of them on the provision of an undertaking reasonably acceptable to the Independent Children’s Lawyer, or any other person that the parties agree to, or the Independent Children’s Lawyer nominates.

3. It was clear to the Court that both the Father and the Independent Children’s Lawyer supported the Mother spending additional time with the children, subject to the matters raised above.  The order will reflect that.

4. The Court thus concludes, having regard to all the material before it, that an order should be made pending further order in terms of the interim orders sought by the Father in his application filed 20 April 2017, with the exception of the order for sole parental responsibility.  In addition, there is no need for order 11 - the recovery order - unless the Mother declines to return the children, which must take place within 72 hours of the making of these orders.  Leave will be granted to the Father, or Independent Children’s Lawyer, to relist in the event the children are not so returned.

5. The matter will be adjourned for a period of 4 months to enable the parties to make arrangements about the most appropriate form of expert evidence in this case.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  14 July 2017