Perrett and Perrett (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRETT & PERRETT (No.2)

[2017] FCCA 3375

Catchwords:
FAMILY LAW – Interim parenting matters – concerns as to the state of the mother’s mental health – evidence untested.

Legislation:

Family Law Act 1975 (as amended), ss.60CC(2) & (3)

Applicant:

MR PERRETT

Respondent:

MS PERRETT

File Number:

ADC 499 of 2017

Judgment of:

Judge Mead

Hearing date:

13 June 2017

Date of Last Submission:

13 June 2017

Delivered at:

Adelaide

Delivered on:

13 June 2017

REPRESENTATION

Counsel for the Applicant:

Ms. P. Kari

Solicitors for the Applicant:

Norman Waterhouse

Counsel for the Respondent:

Ms. M. Dickson

Solicitors for the Respondent:

Alderman Redman Family Lawyers & Mediators (as they were then known)

Solicitor for the Independent Children’s Lawyer:

Legal Services Commission of South Australia

Counsel for the Independent Children’s Lawyer

N/A

ORDERS

That during the period of the adjournment X born (omitted) 2012 and Y born (omitted) 2014 live with the parties as follows:
(a)with the father:
(i)commencing on 13 June 2017 (but for the first cycle commencing on 14 June 2017) with Y from 3:00pm and X from the conclusion of school to 16 June 2017 8:30am for Y and the commencement of school for X and each alternate week thereafter between the same times; and
(ii)commencing 20 June 2017 each alternate Tuesday with Y from 3:00pm and X from the conclusion of school to 7:00pm; and
(iii)commencing 22 June 2017 from 3:00pm with Y and from the conclusion of school with X to 5:00pm 25 June 2017 and each alternate week thereafter between the same times.
(b)with the mother at all other times.
That the orders contained in paragraph 1 hereof continue in operation during the July 2017 school holidays.
That until further order all handovers that occur at the conclusion or commencement of school occur by way of the father collecting Y from or returning her to the mother in the school carpark and collecting X from or retuning him to his classroom.
That until further order all handover that do not occur at the conclusion or commencement of a school day continue in accordance with the terms of paragraph 5 of the order of 1 March 2017.
Directions and interim issues adjourned to 10 July 2017 at 10:00am (40 minutes allowed).
That pursuant to Section 62(G)2 of the Family Law Act 1975 THAT a report be prepared as to such matters that are relevant to these proceedings directed to the best interest of the children generally but in particular to the question of what time and under what conditions they should spend with each of their parents with the report to include observation of interaction between the children and each of their parents and have particular regard to all subpoena material filed herein.
That the parties attend for appointments with Ms A at Suite 6, 75A Angas Street Adelaide SA 5000 as follows:
(a)the mother with the children at 9:30am on 21 June 2017;
(b)the father at 10:45am on 21 June 2017.
That the report be available to the parties and the court on or before 4 July 2017.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Perrett & Perrett (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 499 of 2017

MR PERRETT

Applicant

And

MS PERRETT

Respondent

REASONS FOR JUDGMENT

This matter comes back before me this afternoon for reasons and orders, following upon a lengthy interim argument on Friday last. It is a very complex matter and one of the things that I think is ultimately going to have to occupy the mind of counsel and the court is whether it is transferred to the Family Court. I think that is for another day but I just raise that at this fairly early time.
The proceedings commenced by way of an application filed by the father on 10 February 2017 but I think, for the purposes of today’s reasons and orders, rather than look to the application filed that day and the subsequent response filed by the mother, I should turn straight to the affidavits filed by each of the parties, the father on 2 June and the mother on 8 June, as to the orders that they were seeking as at last Friday’s hearings.
The applicant father, as at last Friday, sought an order for delivery up of the parties’ two children, X and Y, to his sole care, and for the mother to spend supervised time with the children. In the alternative he sought for the children to spend seven nights per fortnight with each of the parties on a five night/five night/two night/two night arrangement. He also sought a discharge of the injunction restraining him from being within 150 metres of the former matrimonial home in which the wife is residing, as he deposes to currently being unable to attend the children’s and his friends’ homes or attend (omitted) events due to the injunction.
The orders sought by the mother as of last Friday were that a family assessment report be prepared and, until the report can be considered and the risks of the children assessed by the court, the children’s current time with the father ordered on 1 March 2017, which is Wednesday from the conclusion of school to 7:00pm and Saturday and Sunday of each week from 12 noon to 5:00pm be reduced. She sought that the children spend time with the father on Wednesday from after school until 7:00pm on Sunday from 12 noon until 5:00pm and during the short school holiday periods on Monday, Tuesday and Wednesday from 10:00am and to 5:00pm with all time to be supervised. She also sought for the current injunctive orders - not just that in relation to the attendance near the mother’s home but the other injunctive orders – to remain in place. I suspect that is common ground between the parties.
The father is aged 42 years. The mother is also 42 years old and they have two children, X, who is now five and Y, who is three. The mother has another child A from her former marriage. A will be 13 in (omitted) and he has been diagnosed to be on the autism spectrum.
The parties commenced cohabitation in (omitted) 2010. They separated on 20 January 2017, at which time the mother left the former matrimonial home with the children.
The matters that the court must consider in determining parenting orders, are those set out in section 60B and section 60CA and section 60CC of the Family Law Act[1]. The objects of that part of the Act relating to children’s issues are as follows, namely that the best interests of children are met by 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. They are met by protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. They are also met by ensuring that children receive adequate and proper parenting to help them achieve their full potential and by ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. These objects are set out in section 60B(1) of the Act.
[1] Family Law Act 1975
The principles underlying those objects are that, except when it is or would be contrary to a child’s best interests, 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. Children also 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. Parents jointly share duties and responsibilities concerning the care, welfare and development of their children and parents should agree about the future parenting of their children. Those principles are set out in section 60B(2) of the Act.
In section 60CA of the Family Law Act, the court is directed that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act directs the court as to how an order that is in the child’s best interests is to be determined and in particular, it refers to section 60CC(2), which is headed, “Primary Considerations” and section 60CC(3), which is headed, “Additional Considerations”.
Section 60CC(2) refers to the primary considerations and is in the following terms:
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.
There is a notation to that order, namely that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b), which is to protect the child from harm.
Section 60CC(3) sets out a series of additional considerations. I do not intend to traverse all of the considerations in section 60CC(3) and, part of the reason that I am not doing that is I have arranged for a family report to be prepared. The interviews will be next Wednesday and the report will be available shortly thereafter. I will turn my mind to more of the factors in section 60CC(3) following that report.
Today, the main factors to which I am going to turn my attention are the benefit to the children of having a meaningful relationship with both parents, the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence and in particular, under section 60CC(3), subparagraph (d), the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living. I will also consider the practical difficulty and expense of children spending time with both parents, as well as the capacity of parents to provide for the needs of the child, including their emotional and intellectual needs.
The father’s application, filed on 10 February 2017, was accompanied by an affidavit. I intend, when I refer to both the father’s initial affidavit and that of the mother, to paraphrase the affidavits. In his first affidavit the father expressed significant long-standing concern as to the state of the mother’s mental health. He deposed to it deteriorating in the latter part of 2016, to the mother being resistant to firstly acknowledging the need for any assistance and accessing any assistance in relation to her mental health. He referred to the medical appointments, both with doctors and social workers at the (omitted) Medical Centre.
He deposed to the mother leaving the former matrimonial home and taking the children with her on 20 January 2017. Eventually the father ascertained that the children and the mother were at the home of the maternal grandmother in (omitted). He deposed to the mother accusing him of sexually abusing the child, Y and he said that, to his knowledge, she made that allegation on 20 January 2017. He deposed to being concerned about the mother’s apparent difficulties in recalling events and conversations and deposed to the mother alternately accusing him of either being patronising to her or controlling towards her.
He deposed to arguments between the parties regarding the time at which the child Y should be weaned and to arguments about behaviour on the part of the child, A. He deposed to the wife taking Y to the doctor in relation to an issue of nappy rash on 10 January 2017 and to later that day, telling the wife that he thought Y should go back to the doctor because when changing her nappy he noticed blisters. He deposed to saying to the mother that he would take Y to the doctor and to the mother insisting that she take Y. That indeed was what happened.
He deposed to the parties, between 11 and 17 January 2017, holidaying in Victoria. He said that that was a happy holiday but on 15 or 16 January the mother received a phone call from the (omitted) Medical Centre confirming that Y had a streptococcal infection. He deposed to the mother taking another call from the (omitted) Medical Centre on 17 January 2017 during the journey home, during which time she became very tense. He deposed to an incident during the holiday where the mother asked him why he was holding Y so closely in their tent, and said the journey home was a very tense journey. There were apparently a couple of stops because of arguments between the parties and he deposed to the mother being very agitated and X, at one stage, telling the parties to stop arguing.
The father said there were further arguments when they arrived home. The mother wanted to take X to the doctors with her when she took Y, as she was required to take Y back for a further check. He deposes to X saying that he did not want to go and staying with him. He deposed to arguments between the parties about who would put X to bed and how X came out of the bedroom and requested that he care for him. He alleged that the mother was delusional about certain aspects of that argument and in particular, to not remembering about X coming out of the bedroom.
The father deposed to phoning the Mental Health Crisis Line and getting no assistance and to seeing a social worker, Ms C, at the (omitted) Medical Centre on 20 January 2017 as a result of his concern and distress. When he arrived home at 2:30pm or thereabouts on that day, he became aware that the mother had left the home with the children. He said that there was no assistance available from the Child Protection Service and that the case had been closed, apparently on the basis of each party making allegations against the other of them.
The mother filed responding documents including an affidavit on 24 February 2017. In her affidavit, she deposed to being the primary carer for X and for Y and to having taken the children to her parents’ home at (omitted). She deposed to the children not being distressed, to the father being verbally and emotionally abusive to her during the relationship and to being abusive to A. She said the father told her that she had mental health issues and talked to others about his belief that she had mental health issues, including other family members and medical practitioners, and that that had led to an escalation, in her mind, of the father’s abusive behaviour towards her.
She said that in about mid-2016, a Dr A from the (omitted) Medical Centre told her that she could be mildly depressed. This was after she had filled out a questionnaire, and she said that she was not surprised about that suggestion on the part of Dr A, nor was she concerned because she said, at that time, the father was abusive to her and, in particular to A. Dr A did not recommend any treatment. She gave an example of the father’s abusive behaviour, to her including him telling her that she was mentally ill when she decided that it was best not to be confrontational with the father about their different attitudes to parenting.
The mother said, for example, issues were the father starting to try to get her to go to a doctor, seeking help from a mental health line and to her seeing Dr A herself and complaining of the abuse. She said Dr A had, pre-the appointment, formed a view about her. She said that she sought relationship counselling and help from a family friend and had an unexpectedly harsh response from that family friend, who essentially suggested to her that perhaps she did need help. She said that she and the father had seen Ms C, a social worker, particularly in relation to issues of parenting of A and she said that the father treated Y and X differently to the way that he treated A.
The mother said that in the latter half of 2016, the father had started to try to do everything for X and Y and that she formed the impression that he was trying to cut her out of caring for the children. She deposed to arguments between the parties regarding the weaning of Y and she said that the father was always saying that the issues that caused the problems essentially were issues relating to her. She deposed to the father suggesting, in November 2016, that Y stay home with him to play tea parties when she drove X to school.
In particular, in paragraph 45 of her affidavit, she said as follows:
When I drive X and A to school, Y usually comes too. On one occasion, in November 2016, the father suggested to Y that if she stayed home with him, he would play tea parties with her. I have reported concerns I had of the husband’s conduct I had following my return from the school run to (omitted) Police. I believe this and other concerns I subsequently had are the subject of an investigation. I do not wish to detail these until the investigation is complete.
The mother deposed to arguments as to passwords on her email account and the exchange of those and said that she was getting more fearful of the father. She said that she telephoned the (omitted) Police to make a report and was referred to the (omitted) Domestic Violence Unit, who advised her to call the Child Abuse Report Line but she could not get through. She deposed to Y being seen by a doctor at the (omitted) Medical Centre and to the father allegedly being upset about her taking Y to the clinic and later that day, she said that the father noticed that Y was sore when her nappy was being changed. He said he would take Y to the doctor, that she said that she would go, the father then said she should take Y and he stayed home with X.
She said that she got to the clinic and saw Ms C, the social worker. She was not apparently expecting to see Ms C and when she tried to raise concerns with Ms C as to the father’s parenting, she did not express any concerns about Y but another doctor came in and took a swab from Y. She deposed to Ms C not expressing to her, that is to the mother, any concerns about Y. The mother said that despite her concerns and the professionals not having confirmed any problems in January of 2017, the family went on a holiday.
On their return they saw a doctor, with the bacterial infection in Y being confirmed. She said at that time both the doctor and Ms C were present and not interested at all in Y but talked with her, that is the mother, as to her mental health and offered to make an appointment if she wanted to. She said that she was fine under the circumstances but that she was concerned about the father and what was going on at home and she said she expressed these concerns to the doctor and Ms C.

She deposed to being upset at an inference of mental health issues from Ms C and the doctor, that she had none and that she had not raised any such concerns herself with any practitioners. She said that on her arrival home, X ran away from her and told her that the father told him that she was bad for taking Y to the doctor but she said this was denied by the father. She said, putting all of those things together, she decided to leave the following day with the children when the father was out, at which time she went to (omitted). After she arrived there she said Y began to make unprompted disclosures.
She said she reported the disclosures to the Child Abuse Report Line and reported issues to the Domestic Violence Unit police at (omitted) and that by the time of the swearing of her affidavit on 9 February 2017 she had not had any response from either. She deposed to speaking with a GP in (omitted) about Y’s disclosures and said that on 21 February X came into her bed and made disclosures about the father’s conduct which seriously concerned her. On 20 February 2017, the day before that, the children had had an appointment with CAMHS at (omitted) and she deposed to it being likely that CAMHS would follow up with X and that she was waiting for the professionals to address her concerns.
She deposed to being happy to undergo a psychiatric report and said that she was prepared to be guided by professionals and that she would not know if the children were safe until the assessments had been completed. She also deposed, in reply to the father’s first affidavit, to numerous matters but the most relevant were that she agreed that after she had left the house with the children, she had not responded to the father’s calls and she said that that was a course of action on the advice of a domestic violence counsellor.
She deposed to both children being more settled at her parents’ home, with X being better at kindergarten, eating and sleeping better and not complaining about sore feet or a sore bottom and she was concerned that various medical practitioners appeared to have made disclosures to the father as to her alleged mental health issues. She denied, in this affidavit, that she alleged that the father had sexually abused Y but said she just reported her concerns and followed advice regarding physical examinations of Y.
She denied that she had any suicidal intention when she commented to the father’s mother, “What do you want me to do? Commit suicide?” when there was a discussion between them about the children and the issues in the marriage. In her affidavit, she denied any suggestion of harming herself or the children and agreed that her mother responded to a suggestion on the part of the father about her mental health that she may have had depression or post-natal depression. She deposed to feeling that no one at the (omitted) Medical Centre was listening to her concerns and that they had all formed a view that she had a problem.
The matter came before the court on 1 March 2017 with an order having been made on 27 February for inspecting and copying material produced by the (omitted) Medical Centre pursuant to subpoena. Following upon argument on 1 March 2017 and for the reasons given on that day, there was an order made by consent that the father vacate the parties’ former matrimonial home by 5:00pm on 9 March and thereafter and until further order, the mother have the sole use and occupation of that property and the father be restrained from attending within 150 metres of the property, noting his possible need to attend the (omitted) headquarters, stationed approximately 150 metres from the said home.
The court further ordered that the mother assume residence in the home with X and Y by no later than 5:00pm on 11 March and that the mother ensure that as and from the commencement of school on 14 March, X be returned to attend at the (omitted) School. The court ordered that during the period of the adjournment, the children live with the mother and spend time with the father on Wednesdays from first of all 12 noon to 5:00pm but then from Term 2, from conclusion of school to 7:00pm on a Wednesday and on Saturday and Sunday of each week from 12 noon to 5:00pm and for time during the April school holidays.
There were orders made about handover and that until further order, the parties were restrained, in fairly general terms, from discussing any matters in relation to the proceedings with the children, denigrating or criticising the other of them, communicating in any way except by a communication book other than where there was an emergency or allowing X or Y to attend on any medical practitioner or allied health professional in relation to mental health issues or for counselling other than by consent, as evidenced in writing or by order of this court.
Both parties were ordered to obtain psychiatric reports from Dr J. There was a section 69ZW directed to SAPOL, an order for inspection and copying of material from the Department of Child Protection and an order for the delivery up of passports which was also by consent.
On 12 April there was an affidavit filed on behalf of the father, annexing a copy of a psychiatric report of Dr J. I intend to paraphrase the report but it referred to a history of depression starting in 1999.
He said notwithstanding that the father was able to continue working. He started psychotherapy, apparently for some six years. There is reference in the report to that starting in 2014. I rather suspect it was supposed to be 2004, otherwise it does not quite make sense but apparently that was not continuous. Dr J referred to the father not having a difficulty functioning at work but perhaps having a level of difficulty in terms of his emotional functioning. There was reference to the relationship with the mother being the longest relationship the father had and to the problems, according to the father, starting when the mother was some six months pregnant.
He said to Dr J that prior to that time, if the parties had a difference of opinion they were able to find common ground and the relationship was not stressful. He said that following upon the mother’s pregnancy and during that pregnancy with Y, the mother withdrew from him physically and emotionally, that she subsequently refused assistance with the children, lost interest in pursuing her (omitted) career, withdrew from friends and family and that there were significant differences between the parties as to Y being weaned, in part it would appear because Y, from a young age, shared the parties’ bed.
There was reference in the report to the father discussing with Dr J problems that A was having at school and then to his description of the incident leading to the parties’ separation, to which I have referred. He reported to Dr J that there was little communication between the parents. Dr J came to the view that there was no evidence of any psychiatric disorder on the part of the father, but he was concerned about the problems in the relationship between the parties and he opined that the father seemed overall fairly genuine and was, in the main, concerned about the mother and not trying to set her up, for want of a better expression.
There was a further affidavit filed on 24 April 2017 annexing a report from Dr J after his examination of the mother, which occurred on 23 March 2017. The mother gave a description to Dr J about her earlier relationship with A’s father. She went into some detail about that and the violence towards her and the stress that was caused to her and she told Dr J that she had met the father via the internet in 2009 and at first, the relationship was exciting and “she overlooked some of his negatives”.
She reported to Dr J that things were getting scary at home and that that is what led to the separation. She expressed significant concern as to how the father treated A. Further on in the report, Dr J referred to the fact that the mother did not mention any issues of alleged sexual abuse or any abuse of any kind with respect to the other two children. She told Dr J that she felt the father had no respect for her opinions from about 2015 onwards and was belittling towards her.
She alleged that the father had put his hand through a door and had ripped up his pyjamas when he was angry with her. She told Dr J that she had spoken with the father’s mother about the father having some anger management assistance but that in that discussion, it was evident that the father had been speaking with his mother about her behaviour. It was in the context of that conversation when she said to the mother words to the effect of, “What do you expect me to do? Commit suicide?” and she denied that she had any intent to do that and simply used it as a term of speech.
She told Dr J that she believed that the father was trying to set up a story about her being mentally unwell and trying to influence his mother, various doctors, social workers, police and the like to that end. She told Dr J that she had not changed in any way, that she was open to solving problems and referred to the difficulties caused by the parties’ differing opinions as to the rate at which Y’s breastfeeding should cease or at least certainly slow down. Under the heading of, “Mental State Examination”, Dr J referred, at some length, to an issue about the mother taking the children to his rooms with her mother and taking over his waiting room. I have to say I am not terribly sure about the import of all of that. It might, on the face of it, seem a fairly unusual thing to do but it did not seem to have much bearing on the matters before this court.
He referred to the mother however, as having slowed speech, which he put down to her picking her words carefully. He did not find, in discussions with her, that she had any delusional beliefs or any significant mental health history. He did observe the way in which it appeared that the mother was psychologically separating from the father but he was unable to come up with any reason as to why that may be.
He described the mother as being very calm, which to his mind was somewhat an unusual presentation in the circumstances of this case and the very real difficulties that the parties were experiencing and the stress that that would be likely to cause to the parties, and described her as presenting with a quiet assurance. He described her as being very focused on the children and essentially, seemingly to exclude the father or wanting to exclude the father from the relationship with her and with the children. He described this as being normal immediately after the birth of a child but in the case of the mother in these proceedings, the behaviour seemed not to have stopped.
He said he was unable to discern why the mother had such a focus on the children in question and questioned as to whether she was suffering from post-natal depression but in his view, other indices for that condition were not present and he thought, therefore, that there may be a psychological or relationship issue.
He said that in his view, both of the parties were able to be good parents.
From the court’s point of view, the issues of concern to this date are as follows: the mother’s very vague first affidavit. She gives no details at all in that as to why she made any report to CARL and said nothing about what Y had allegedly disclosed to her.
She made reference to a tea party game which, on the face of it, was innocuous in the extreme and to the father holding Y tight in a tent whilst they were on the Victorian holiday, with his hands under her clothes. Y is a very small child and of course, the father’s response to that was he was trying to hold Y back when she was shining a torch in X’s eyes. Apparently, the first report to CARL was made on 10 January 2017 by the mother but in perusing the material that was subsequently filed from the (omitted) Medical Centre, it appears that the first issues were raised with a doctor in late 2016.
The parties went on the holiday to Victoria after 10 January 2017 when it appears the mother made the report to CARL. Subsequently, there was confirmation from the (omitted) Medical Centre that Y had a streptococcal infection, which seemed to account for the blisters noticed when the nappy was being changed. The mother and the children then leave the former matrimonial home. As I have said, the mother only talks to Dr J about the father’s abusive conduct to A and makes no reference at all to any alleged abuse to Y or X.
Dr J referred to the mother choosing her words carefully, which is of some concern to the court. Her appointment with Dr J was on 23 March 2017. By then, the mother had engaged with the Department of Child Protection and the police for a period of at least two months and it seems very unusual that these issues were not mentioned by her to Dr J, particularly when she saw fit to mention, at some length, issues concerning A. I might add, as I said in court on Friday, it was equally unusual that Dr J did not raise those issues with the mother in circumstances where he had the material that had been filed to then, to which I have already referred.
On 2 May 2017, documents were filed following upon a subpoena to the (omitted) Medical Centre. There was an affidavit setting out the major features of those documents and various annexures, A through to F. They detailed attendances by the parties and the children upon various doctors and social workers from the time that the mother was pregnant with Y, at which stage the parties lived in (omitted). Again, I do not intend to go one by one through all of these issues; this interim hearing is not the place for that to occur, but suffice it to say that the annexures consist of a long history of concerns about the mother’s mental health from the time of Y’s birth at least.
There were concerns from doctors in (omitted) as to the mother’s presentation and to her beliefs as to the father sexually abusing the children. There was reference to the kissing game with Y, there was reference to discharge on Y’s nappy near her vagina. My recollection is that that was in fact the earlier report to the doctor in late 2016.
There was significant concern expressed by both police and Child Protection Services in relation to what seems to be an interview conducted by the mother with Y as to the allegations made against the father.
There was clear reference in the material filed to the father expressing concern to whoever would listen from about at least mid-2016 with respect to his concerns about a deteriorating mental health state on the part of the mother. Concerns were expressed by various doctors and social workers as to the mother’s presentation and their view that her presentation was somewhat concerning and that perhaps she may benefit from some assistance with mental health issues. There was reference to her constant refusal to countenance that and to her seemingly being unable to consider any other point of view than her own which, by early 2017, had got to the stage where she had determined that the father had narcissistic personality difficulties.
There was material filed as to concern on the part of a paediatrician, Dr S, as to Y’s feeding and concern about her possibly having an eating disorder and needing more solid food. There was a reference to him, from a GP, in relation to that particular issue. There was concern expressed in the medical notes as to the impact on the mother of domestic violence in her previous relationship with A’s father and ongoing parenting disputes that she was having with him and the pressure that that was placing on the mother as well, of course, as the concerns about the pressure on the mother and the father – but the mother in particular – as to A’s behavioural issues.
There were reports about the mother expressing concern that the father was trying to say that all of the marital difficulties were her fault according to the father and that she was having a nervous breakdown. Dr A, on one occasion, expressed concern that the mother was very forceful and unwilling to look at problems from any perspective other than her own beliefs. Ultimately, there were then further affidavits filed by each of the parties and I have referred to the orders that they sought. The next affidavit that was filed was that of the mother filed on 2 June 2017.
She deposed to Y continuing to make statements of concern to her about the father and events during their time with the father, including Y being hurt with a stick, Y complaining of sore genital area, Y being kissed on the face, back and genital area, X saying Dad is going to take her and Y away and call the police and “get them to put you in jail”, X referring to the father’s mother as bad and scary, the children telling her they had new beds for when they go away and saying that they do not want to go to Dad’s and X, on one evening, saying, “No, I do not want to do it ever again” and when she asked, “What again?” he said, “Go to Dad’s”.
She deposed to her ongoing concern that the children are at risk in the father’s care and concern that the father was discussing matters to do with the court proceedings. She instructed her solicitors to write to the father’s solicitor about that. She deposed to X being increasingly reluctant to go to the father, being upset when they returned, to the father trying to engage her in conversation rather than just using a communication book, to X struggling to spend Saturdays and Sundays, after being at school all week, with the father and to her, that is the mother, having seen a counsellor from (omitted) in (omitted) for support and to the counsellor suggesting that she report the children’s statements to the Child Abuse Report Line. She said that it was based on all of those concerns that she sought the orders to which I referred earlier.
On 8 June, the father filed an affidavit. He said he played a kissing game with Y and X, it involved kissing their faces, nose, eyes, cheeks, forehead and lips. Kissing game had no social context whatsoever and he said he played that with X when he was a baby and that he has kissed the children on the lips since they were babies. He said that since 8 April, he has had either his mother, his brother or a friend present throughout the duration of each visit with the children except for one 10 minute handover and he said the visits have been progressing well but he had concerns regarding X’s level of distress at times.
He said the children are always happy to see him. They are affectionate and loving towards him generally, always engaging and interactive and he described what they do together in terms of activities. He deposed to X making comments on occasions that concern him and that X is often distressed, confused, worried and/or anxious and clingy towards the wife at handovers. He said some of the comments that X makes do not seem to make sense and he is concerned that X does not know what to do or think and that he is very confused.
He said he is generally however very happy, that during the first two handovers, the wife appeared to be stressed, wide-eyed and emotional and on one occasion, she broke down when the children got into his car. He deposed to X coming to one of the visits, on 12 March, with a note in his pocket in the wife’s handwriting, which stated, “X’s mum, Ms Perrett” and a mobile phone number. He deposed to X trying to give the note to his mother, that is, the father’s mother, as soon as he saw her and that he appeared to be confused and unsure what he was supposed to do with the note. On the next visit, on 18 March, he said he arranged a play date for X and a friend and as soon as X saw his friend’s mother, he tried to give her a note with the wife’s mobile telephone number and address on it.
He said that he asked X why he had the note after the friends had left and X said words to the effect, “Mum said I have to give it to a neighbour if Dad hurts X or Y”. He then referred, in the following paragraphs, to certain comments made by X about what he had allegedly been told by the mother. In paragraph 14, he deposed to three officers from SA Police attending at his home unannounced on 6 April 2017, searching his property, taking possession of all his electronic devices, including his current and old mobile phones, laptop, tablet, four USB drives and a hard drive.

He deposed to being informed that the wife had made an allegation to SA Police that on 5 April 2017, X had informed her that X had abused Y with a stick at the father’s instruction and that the father had filmed it. He was told by police that that warranted a search and seizure but not an interview and that his devices would be retained. The following day, he said two police officers attended at his home and returned all of his electronic devices and deposed to there being nothing found on the devices and deposed to interviewing A in relation to the mother’s allegation that A had been physically abused by the father and not knowing that A had autism and expressing concern about the wife’s mental health.
He then deposes to further comments made to him, apparently by X as to things that were critical of him. He then referred to the material that was filed by the independent children's lawyer on 8 June 2017. There is a large amount of material indeed. It repeats, really, much of what I have already referred to but ultimately, on 10 April 2017, this reference appears in the case notes:
Significant risk of emotional abuse due to mental health. The children’s emotional development is seriously at risk as a direct result of the mother’s persistent behaviour of questioning the children about sexual abuse by the father and of taking the children to the doctor for intrusive medical examinations of their genital areas. While the mother does not have a diagnosed mental health condition, there is ongoing mention of the mother’s mental health in past reports, with concerns relating to her pattern of belief that the father is sexually abusing the children and her resulting behaviours that are reflected in the children’s child protection history.
The most recent case notes are as recent as 8 May 2017, when a notifier confirmed the current order of this court and further concern that they were aware that when the mother was changing Y’s nappy, Y complained that she was sore, that it still hurts, that it hurts every time and that she wants Daddy to go away, that X is getting more reluctant to go to see the father and that the mother is trying to encourage him to be positive to comply with the order of this court. Under the heading, “Decision and Rationale”:
No change to assessment. The information reported does not give reasonable grounds to suspect abuse, neglect or that the children are at significant risk of serious harm.
The effect of the material from both the police and the Child Protection Department as annexed to the affidavit of Ms S, filed on 8 June 2017, is that the wife has made certain reports to the Child Protection Services in accordance with the matters to which I have already referred and to which she has deposed, that certain other notifiers have also made reports as to the same issues, that the police have been involved in interviewing and speaking with the mother, that they have expressed concerns to the Department of Child Protection as to the mother’s presentation and to their concerns as to how she relates to them, her demeanour on occasions and to their concerns about the mother having some level of mental health difficulties.
The notes persistently say that there is nothing from the Department of Child Protection’s point of view to support any allegation that X or Y or either of them have been sexually abused by the father. The notes suggest that they went to the extent, when the mother had complained about the father’s interest in pornography and the alleged photographing of the children by the father, of removing all of his electronic devices and nothing was found to support either of those allegations. The Department itself has expressed concerns as to the impact on the children’s mental health of the mother’s persistent beliefs, the persistent reports and her interviewing, in particular of Y, as reported and discussed both by police and the Department for Child Protection.
As far as the Department is concerned, there is no basis whatsoever to persist or pursue any further investigations with respect to the allegations and the police are not intending to pursue any further inquiries as to the matter. Indeed, in the notes subpoenaed from the Department for Child Protection, there is, at one stage, a discussion between the police and the Department for Child Protection that a family report would be of most assistance.
So as I say, that is a summary of the evidence before the court. The concerns that I have today in particular are the need for the children to be protected, particularly from emotional harm, from being subjected to abuse. I am concerned about the mother’s mental health. The two real big issues in the matter are: is the mother suffering from any mental health issues, be it psychiatric or psychological? Psychiatric would seem to be no, based on the report of Dr J but that report is deficient to some extent to my mind. He refers to unusual presentations on behalf of the mother, an unusual situation and the possibility that there is some underlying psychological problem.
There are certainly longstanding concerns expressed not only by the father but a myriad of professionals as to the mother’s mental health now for a considerable period of time. There is no evidence to suggest that either of the children have been sexually interfered with by the father. This is an interim hearing. The court can of course make no findings as to the contested matters but overall, there is nothing to support the mother’s allegations of sexual abuse by the father of the children or either of them, contrasted with a significant history of at least 12 months and really, significantly earlier than that, of the father’s concerns about the state of the mother’s mental health, supported by various police, doctors and social workers who have had contact with and communication with the mother. The court cannot simply ignore that issue.
The court must use its best endeavours to ensure that the children are safe, both physically and emotionally. At this stage, the court is unable to be sure that the children are safe in the mother’s care. It is certainly more satisfied that they are more so in the care of the father. However, the children also of course have to have their young age taken into account, the fact that the mother has, certainly since separation, been the primary caregiver but of course, for a significant period of time after the parties left (omitted) and moved to (omitted) and up to the time of separation, both of the parties lived in the former matrimonial home with the children.
So it is really only particularly since January of this year that the mother has been the primary caregiver. The children are used to being cared for by both of their parents. Their parents live in very close proximity. It is those factors that satisfy me that if I make a change to this order, the impact on the children will be less than perhaps it might otherwise be in other matters. It will have some impact on the children but I consider the children’s safety should override the level of concern about any change to their current arrangements.
I am not satisfied that the mother’s mental health is stable. There are many pressures upon the mother. There are the issues raised in the material from the medical centre particular as to the pressures the mother experienced in a domestically violent relationship with A’s father and ongoing issues that may be ongoing as we speak as to A’s parenting arrangements. She has had to cope with the breakdown of this marriage, the very, very unhappy circumstances between the parties over about the last 12 months at least, with almost constant disharmony and significant fighting during that period of time. This perhaps involved some physical altercations between the parties on occasions but it seems more, on the evidence filed to date, to be perhaps at worst, pushing and shoving, not that that is acceptable either.
There is certainly confirmation on the part of the father that, in extreme exasperation, he ripped his pyjamas. This could have been a threatening issue. There is also, an allegation that he put his hand through a wall. The children Y and X have certainly been subjected, over the last 12 months or so, to very significant abuse in their household as between their parents. There is also the constant arguing about A. There are also the allegations on the part of the mother about the father’s unpleasant behaviour towards A.
That did not seem to be particularly confirmed by A in his interview with police but there are of course some limitations on the reliability of what A has to say.
Taking into account, in particular, firstly the need to protect the children from abuse, neglect or family violence, physical and emotional and my concern about the emotional impact on the children of what may well be some underlying mental health issues of the mother, certainly there is no evidence that those concerns are being addressed at this point in time.
Secondly, the right of the children to have a meaningful relationship with both their parents, to the extent that it is in their best interests. Taking into account my concern about changing the children’s current arrangements but the comfort that I gain from the children having experienced being cared for by both parents in fairly recent times and the very close proximity of the parents, I am satisfied that the children’s best interests would be met by changing their arrangements, such that they spend six nights out of every 14 with the father and eight with the mother.
It might be said that if I have this many concerns about the mother’s mental health, why do I not make an order that says that the children are in the father’s care full time and not see their mother at all? I am not satisfied that the matter warrants such a dramatic order. I would be concerned about the impact on the children of that order. The mother will be under no illusion whatsoever, by the end of the hearing today, that the court has very serious concerns about how she views the situation generally at the moment, in particular how she views the father’s conduct towards the children and how very real the court’s concerns are about her mental health.
It is to be hoped that the mother will take those things on board. I am not going to order her to immediately obtain a mental health plan and attend upon a psychologist, but I would be concerned indeed if such a course did not happen. I am satisfied that with these matters being brought to the court’s attention and the views that the court has expressed the mother will particularly turn her mind to the issues. The airing of these matters is something that is likely to be a protective factor in itself in terms of the children’s time with each of their parents. And the order that I intend to make is going to cover a two week period, so that the children will be regularly in the care of the father and he will be able to monitor any further concerns that he might have.
The injunctive orders that are currently in place about not discussing issues with the children and the like have to remain in place. The father seeks that the injunction be removed in relation to 150 metres. I am not prepared on the basis of the material before the court to remove that order. It might cause some difficulties, but, quite frankly, that is one of the lesser matters of concern in these proceedings.
A Family Assessment Report has been ordered and Ms A is to prepare that report. The interviews will occur next Wednesday. I will incorporate all of this in the order in a minute. The interviews will take place at 75A Angas Street, Adelaide with an interview at 9:30am in the morning with the party who has the care of the children and a second interview time at 10:45am with the other party, and of course she will work out about the observations presumably during that process.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 21 February 2018

[2017] FCCA 3375

13 June 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Discovery

Injunction