PICKFORD & PICKFORD

[2020] FamCA 656

FAMILY COURT OF AUSTRALIA

PICKFORD & PICKFORD [2020] FamCA 656

FAMILY LAW – PARENTING – Review of the decision of a Senior Registrar – Where the father seeks to vary orders to increase time with the children – Where the children are aged five and two and a half – Where the mother is the children’s primary caregiver – Orders for a graduated time regime – Where the father seeks an injunction to prevent a friend of the mother from attending her home – Where the father has engaged in extensive surveillance of the mother and her friend – Where there is no basis for this injunction.

Family Law Act 1975 (Cth) s 68B

McCall & Clarke (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375

APPLICANT: Mr Pickford

RESPONDENT: Ms Pickford

INDEPENDENT CHILDREN’S LAWYER: Mr Macdiarmid

FILE NUMBER: SYC 3365 of 2019

DATE DELIVERED: 11 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: The Norton Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Macdiarmid Family Law Specialist

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the children X born … 2015 and Y born … 2017 live with the mother.

2. That the children spend time with the father as follows:

   (a)In the first week of each two week cycle, from 8.30 am on Saturday until 6 pm on Sunday.

   (b)In the second week of each two week cycle from 2 pm or after school or pre-school on Thursday until 9 am or the start of school or pre-school on Friday.

   (c)In the school holidays at the end of the first term of 2021, for two periods of two nights and two days with the children, and in the absence of agreement, those periods will commence on Wednesday at 2 pm and end on Friday at 6 pm.

   (d)In the school holidays at the end of the second and third terms in 2021, for two periods of three days and three nights with the father, in the absence of agreement, starting on Tuesday at 2 pm and ending on Friday at 6 pm.

3. That, if pursuant to these orders, the children would spend the weekend of Mother’s Day with the father, then these orders are suspended and the children will spend the next weekend with the father.

4. That, if pursuant to these orders, the children would spend the weekend of Father’s Day with the mother, then these orders are suspended and the children will spend the weekend of Father’s Day with the father and the following weekend with the mother.

5. That notwithstanding any other order, in even numbered years the children spend time with the father from 9 am on Christmas Eve until 3 pm on Christmas Day and with the mother from 3 pm on Christmas Day until 6 pm on Boxing Day.

6. That notwithstanding any other order, in odd numbered years the children spend time with the mother from 9 am on Christmas Eve until 3 pm on Christmas Day and with the father from 3 pm on Christmas Day until 6 pm on Boxing Day.

7. That the application to vary Order 6 made 29 July 2019 be dismissed.

8. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickford & Pickford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3365 of 2019

Mr Pickford

Applicant

And

Ms Pickford

Respondent

REASONS FOR JUDGMENT

1. Mr Pickford (“the father”) and Ms Pickford (“the mother”) are the parents of X who is aged five years and Y who is aged two and a half years.

2. The parents separated in late November 2018 when Y was less than a year old and X was three and a half years old.

3. It is not disputed that, when the parents lived together, the mother was the primary carer of the children.

4. After the mother returned to paid employment following the birth of the children, she worked part time and tailored her working hours to the children’s needs.

5. The children currently attend childcare on Monday, Tuesday and Friday. The mother works on those days. X will start school in 2021.

6. The father worked in his own professional practice throughout the relationship and after separation.

7. The father’s application for parenting orders was heard by the Senior Registrar on 20 May 2020. The Senior Registrar made orders which provided for the children to spend time with the father in a graduated regime that, from 8  August  2020, would have the children in his care on alternate weekends from 8.30 am on Saturday until 6 pm on Sunday and, in the alternate week, from 2  pm  on Thursday until 9 am on Friday.

8. Those orders roughly accorded with the father’s application wherein he sought overnight time with the children each week and alternate weekend time from 8.30 am Saturday until 5 pm on Sunday.

9. The father filed an application to review the orders of the Senior Registrar and thus the matter now comes before me as a hearing de novo.

10. The father now seeks a different regime of care for the children where they would be in his care on alternate weekends from Friday afternoon until 6 pm on Sunday.

11. In the first week of each two week cycle, they would also be in his care on Tuesday afternoon until 6 pm.

12. In the second week of each two week cycle, the children would live with the father from after school on Tuesday until school starts on Wednesday and Y would remain in his care for the whole of Wednesday until 6 pm.

13. During the October long weekend in 2020, the children’s time with the father would be extended to Monday at 6 pm.

14. From the first weekend in March 2021, the weekend time would be extended to end on Monday morning and Tuesday afternoon time in the first week of the cycle would cease.

15. From the beginning of the third school term in 2021, the arrangement would change again. The weekend time would be extended to end on Tuesday morning and the Tuesday overnight (until 6 pm Wednesday for Y) in the alternate week would be retained.

16. In relation to school holiday periods, the father proposes that from the end on the first and second terms in 2021, the children spend five nights with him; after the third term in 2021, six consecutive nights and during the Christmas holidays six consecutive nights each fortnight.

17. From the holidays at the end of the first term in 2022, he proposes that school holidays be equally shared.   

18. The father also seeks specific orders relating to special occasions and an order restraining the mother from bringing the children into contact with Mr B who is a friend of the mother. The father also seeks that Mr B be restrained from attending the residence of the mother, even in absence of the children. He is her counsellor. They were friends before the mother and father met.

19. The mother wishes to maintain the regime put in place by the Senior Registrar.

20. The father relies on an affidavit sworn by him on 14 July 2020. The mother relies on an affidavit sworn by her on 28 July 2020.

21. An Independent Children’s Lawyer (“ICL”) appeared for the children. The ICL did not support the father’s application.

22. These are interim proceedings and, where there are factual issues in dispute, they cannot be resolved in the limited form of enquiry available. Some significant facts, however, are not in dispute.

23. It is not contested that between 16 November 2019 and 7 December 2019, on the instructions of the paternal grandfather, there was professional surveillance of the mother and of Mr B. Numerous photographs were taken of the mother and of Mr B without their knowledge, at their respective homes, in public places, in their cars, with each other, with the children, with third parties and alone. Their activities were reported upon in significant detail, to the extent of reports of what was purchased in the supermarket and the hardware store.

24. The father deposed that he had not intended to use the surveillance report in court but “rather to provide third party evidence that [Mr B] was present at the home”. That evidence does not explain the extensive surveillance of both the mother and Mr B at places other than the home.

25. The mother found out about the surveillance in the course of the preparation of Dr C’s report. She deposed:

    I felt absolutely distressed and shaken… I feel that this is an absolute invasion of my privacy and a means by which [the father] can continue to exert control and intimidation over me, behaviour which I frequently experienced by [the father] throughout our relationship.

26. Although the father has consented to an order that he not cause the mother to be watched or followed, the mother deposed that she continues to feel uncomfortable when entering or leaving the house and remains concerned that the father is having her watched.

27. The mother deposed that a number of her friends have told her they are reluctant to come to her house, to babysit for her or to associate with her because they are concerned about surveillance.

28. The Court was also assisted by a report of a single expert, Dr C, who is a child and family psychiatrist who conducted interviews in February, March and April 2020 and prepared a report dated 28 April 2020.

29. Dr C recommended that, on a final basis, orders be made in the following terms:

    …it is my view that the preferred arrangement would be one which progresses as [the father] suggests, but just up to an arrangement which entails four or five nights a fortnight during school terms by the beginning of the October 2021 school vacation, starting with an immediate introduction of Y into the July 2019 orders for X, then reducing the midweek visits to one overnight weekday. The term time could be increased over the period of about a year to a longer (three or four night) block one weekend, and the same weeknight on the following week, and increments building to half school holidays by Easter 2022.

30. Whilst I am conscious of the fact that Dr C’s report is untested by cross- examination, the report contains his assessment of the vulnerabilities both of the mother and of X and, for the purpose of these interim determinations, those assessments must be taken into consideration, particularly in circumstances where the father raises concerns about the mother’s mental health.

31. In relation to the mother, Dr C reviewed her psychiatric history and spoke with her treating psychiatrist and her therapist.

32. The father’s concerns are described by Dr C in the following terms:

    [The father] expresses concern that his wife has not acknowledged more psychiatric symptomatology than she has herself recorded, including to me, and that her motivation to continue to take medications wavers and makes her vulnerable to a relapse which in turn may impair her parenting of the children. Moreover he alleges that Mr B has negative views about her psychiatric treatment which undermines her confidence in the medications and increases the chance that she will experience a relapse. Finally, he basically alleges that Mr B interferes with, and largely controls, her family life.

33. As to the nature of the mother’s illness and her compliance with treatment, Dr  C stated that the account the mother gave to him was consistent with the records provided by her treating psychiatrist.

34. Dr C stated, of his review of the documents produced:

    Thus it is clear that she is vulnerable to brief psychotic episodes but they appear to be quite brief and well managed. I also note that the records verify that she has good insight in the sense that she has initiated modifications in her medication appropriately except for very early in her illness, she has contacted trusted people on each occasion to inform them of her perplexity and worries, and she has complied with the treatment which was given at the time.

35. Dr C found no substance in the father’s allegation that the mother was non- compliant with her medication and he concluded:

    For these reasons, I agree with [the treating psychiatrist] that provided that [the mother] continues to take her medications, it is likely that if she does suffer a relapse it will be very brief, she will bring herself for very early treatment, treatment response will be almost immediate, and her parenting is unlikely to be significantly compromised. However under those circumstances, it would be helpful if the relationship between she and [the father] was sufficiently good for him to relieve her of the children for the very few days which may be required.

36. Dr C stated:

    While some vulnerable people can become transiently psychotic in the context of very intense group introspective experiences, the correlates of [the mother’s] breakdowns are very clearly external stresses.

37. It is reasonable to infer that the imposition upon the mother, against her will, of a parenting arrangement that she may not be able to tolerate, could be such an external stressor.

38. Similarly, it is reasonable to accept, as the mother deposed, that she was and remains stressed and distressed by having been subjected to covert surveillance on behalf of the father.

39. Some caution must be taken in circumstances where, on the father’s application, at least in the interim, the mother will continue to be the children’s primary carer. If, ultimately, the father’s assessment of the mother’s mental health is accepted, and she is more fragile than Dr C concluded, then it would be important that her health should not be threatened or de-stabilized in the interim.

40. In relation to X, Dr C commented that X “has already demonstrated that he is particularly sensitive to tensions between his parents.”

41. Dr C stated:

    …I am most worried about X. It appears from the [pre-school] records that he was starting to become somewhat unsettled and disruptive at day care, and he continues to be clingy with his mother after weekend visits.  I would expect this to be the form that his distress would take, as well as a greater level of insecurity associated with clinging behaviour and possibly also further incontinence, were the arrangement to continue to generate conflict between his parents.

42. Dr C stated:

    [X’s] anxieties will probably settle quickest as tensions between his parents subside and also as Y’s time with the father is increasingly synchronized with his.

43. Thus the father’s proposals for the parenting of these children, albeit on an interim basis only, must be considered having regard to the vulnerabilities that Dr C has described in both the mother and X and in the light of the father’s ability to sensitively deal with those vulnerabilities.

44. It is the mother’s case, as related to Dr C and in her evidence, that the father has been and is controlling.  The mother, as she deposed, regards the surveillance as another instance of his controlling behaviour.

45. The mother’s treating psychiatrist, who had met the father on a couple of occasions told Dr C “…that in these brief interactions, the impression that he gained of [the father] was of someone who was rather obsessive and controlling.”

46. Dr C reported that the mother:

    …is of the view that [the father] is still an overbearing, controlling person who has limited familiarity with the children, and [the father] is still strongly of the view that [the mother] is emotionally vulnerable…

47. Dr C stated:

    [The mother] is clearly very sensitive to [the father] behaving in a bullying an  [sic] overbearing way, and I think that probably is a part of his character.

48. Dr C described the father as “objectively overbearing”.

49. In relation to the father Dr C stated:

    …I am concerned that [the father] has his own problems with seeing things disproportionately and that it reflects a quite self-absorbed and dominating aspect to his personality.

50. He further stated of the father:

    While I do not think that he has beliefs about [the mother] and Mr B which are of a delusional intensity, in my view bearing in mind the scanty evidence that he has been able to assemble, the fact that the same fairly non-technical records he read allowed me to come to very different conclusions to his, and the way he uses inference and quoting material out of the broader context in which it is embedded, suggests that these two beliefs are at the level of overvalued ideas. This is a psychiatric term which is used for ideas which people hold with an obsessive intensity, which are seen in disproportionate terms, but which are not inherently bizarre or psychotic. Unfortunately it can be very difficult to assist people who hold overvalued ideas to readjust their world view to see these ideas in more proportionate terms.

51. Nothing in the evidence of Dr C gives confidence that the father will apply the required level of sensitivity to his dealings with the mother in relation to the arrangements for the children, so as to render their dealings with each other less stressful for her.

52. To the contrary, Dr C stated of the father:

    Overall I think that he is the parent who is the less likely to support the children’s relationship with the other parent were he to feel that [the mother] was either not following the orders, or in particular if he suspected that Mr B was still on the scene with his children. Indeed as I indicate later, some of his accusations appear so lacking in basis that it appears he is determined to undermine her relationship with the children.

    and

    In other words, I am concerned that [the father] has his own problems with seeing things disproportionately and that it reflects a quite self-absorbed and dominating aspect to his personality.

53. Dr C stated:

    …I do not think that the parents’ relationship is going to be repaired to a reasonable level of trust all that easily.

54. I am conscious that all of Dr C’s evidence is untested and it may be that, at trial, some or all of his evidence might be disregarded. However, for the purpose of this application, the evidence cannot be ignored. Indeed, senior counsel for the father, in his Case Document, and in his oral submissions, submits that significant weight should be given to selected portions of Dr C’s report.

55. Dr C commented that it would be helpful if changeovers occurred through third parties and, I infer, without the parents meeting.

56. In determining the most appropriate arrangements for the parenting of these children until such time as the matter can be finally heard, it is necessary to have regard to the only relevant primary consideration which is the benefit to the children of having a meaningful relationship with both of their parents.

57. It is relevant that, at the time that Dr C saw the family, in February 2020, Y had only spent one night in the care of the father, at Christmas 2019, and that X was spending less time with the father than he now is. Despite that limitation, Dr C observed:

    When I saw the children with each of their parents, the observations that I made were essentially the same. The children made the transition between their parents quite satisfactorily, both when the children went to their father after I had seen them with their mother, and when they returned to their mother after I had seen them with their father. Both these transitions occurred in the presence of both parents, which can be a stressful situation for children if their parents’ relationship is poor, however on both occasions the children spontaneously and affectionately farewelled the parent they were leaving and enthusiastically greeted the parent to whom they were going. In my view this is consistent with firstly the importance of each of these parental relationships to each of the children, and secondly that the children have been better quarantined from the tensions between the parents than many high conflict families I see, although I think it is likely that X at least has picked up some of this in more subtle ways.

1. Thus it would appear that, even with limited time with their father, the children had maintained a meaningful relationship with him up to the time of the observation.

2. As the Full Court stated in Moose & Moose (2008) FLC 93-375:

   ...even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

3. In McCall & Clarke (2009) FLC 93-405 the term “meaningful relationship” was described as a relationship that is significant, important and of consequence.

4. Nothing in the report of Dr C suggests that, if the time that the children spend with their father proceeds as the mother suggests, the children’s relationship with him will diminish in quality from its present position.

5. Dr C, in his report, refers to “the parents’ entrenched and mutual distrust”. He states that the children’s strongest attachment is to their mother and that her parenting “appears to be unimpaired”.

6. Dr C did not canvass the children’s views, having regard to their ages.

7. In relation to the nature of the relationships of each of the children with each parent, Dr C stated:

   The information available to me suggests that both children have quite secure relationships with their parents under the circumstances. I think that the themes of the dreams X reported to his mother after visiting his father probably indicate no more than that she has been his primary care giver and that he turns to her in the face of tensions between his parents, leading to clingy behaviour.

8. The likely effect of a change in the children’s circumstances, both upon them and upon the mother, is a matter for careful consideration.

9. Y is two and a half and she has spent very limited time away from her mother.

10. Y started spending overnight time with her father after the orders of 20  May 2020.  On my calculations, she has now stayed for a whole weekend, overnight, with her father, pursuant to those orders, on three occasions.

11. If orders were made as the father seeks, that alternate weekend overnight time would immediately increase to two nights and, in November 2020, to three nights. I consider that progression, for a child who is not yet three years old in November, to be inappropriately rapid.

12. Whilst the father is understandably anxious to increase the time that the children spend with him, this should not occur at the risk of its being too unsettling for the children and too distressing for the mother.

13. A preferable course would be for the overnight time to increase at the end of the first school term of 2021. By that time, X will, hopefully, have settled into school and Y will be three and will have experienced overnight time with her father for nine months so she will be ready for the time to increase. In addition, the mother may have more confidence that the children are happy and contented in their father’s care.

14. The father does not give any explanation for insisting that Y be in his care on Wednesday which is a day that the mother does not work and is able to spend with Y.

15. The orders will maintain the regime put in place by the Senior Registrar until the commencement of the second term in 2021 when the time with the children on weekends will be extended to start on the first Friday of the term from after school and pre-school and finish on Sunday at 6 pm.  

16. In the school holidays at the end of the first term of 2021, the children will spend two periods of two nights and two days with the children, in the absence of agreement, those periods will commence on Wednesday at 2 pm and end on Friday at 6 pm.

17. In the school holidays at the end of the second and third terms in 2021, the children will spend two periods of three days and three nights with the father, in the absence of agreement, starting on Tuesday at 2 pm and ending on Friday at 6 pm.

18. I do not propose to make orders in relation to the long Christmas holidays at the end of the fourth term. It is not possible to predict how the children will have accommodated the extended periods that I have put in place. The parents are, of course, free to reach agreement if they are both of the view that the children’s time with the father should be increased.

19. I consider that the time that is provided in the orders constitutes substantial and significant time from the beginning of the first school term of 2021 as it provides for time that includes both school days and weekends and holiday time.

20. It is not reasonably practicable, before then, for the children to spend substantial and significant time with the father because of Y’s age, X’s vulnerabilities, the mother’s vulnerabilities and the parents’ lack of demonstrated ability to work together to solve any difficulties that might arise if the children don’t cope will with the arrangement. Dr C reported that the father “…told me that the events since the separation have provided numerous instances of [the mother’s] inability to co-parent.” The father gave Dr C a number of examples and said “there are countless examples of this kind of thing.”

21. I am not in a position to examine the reasons that the co-parenting relationship is not presently viable but I accept that the father says it is not.

22. The father also seeks orders relating to “special days” in relation to which the mother’s response is silent. I have assumed for the purpose of this application that she opposes the father’s applications in relation to special days. No submissions were directed to those matters by either party.

23. The orders sought by the father deal with Easter, Christmas, Mothers’ Day and Father’s Day.

24. I do not propose to change the children’s arrangements during the Easter holidays.

25. As to Christmas, the father proposes that the children spend time from 9 am on Christmas Eve until 3 pm on Boxing Day in one year and from 3 pm Christmas  Day until 6 pm Boxing Day the next. As that scheme appears to accord broadly with the orders sought by the mother in her Amended Initiating Application, orders will be made in those terms.

26. The children should spend the weekend of Fathers’ Day with the father and the weekend of Mothers’ Day with the mother.

27. I now turn to the father’s application for orders restraining the mother from bringing the children into contact with Mr B.

28. On 29 July 2019, an order was made restraining the mother “from allowing the children to spend time with [Mr B]”.

29. The mother does not seek to vary that order. The father, however, seeks to extend the operation of the order in the following terms:

    That the Mother be and hereby is restrained from:

    (a)causing or permitting [Mr B] to be in the presence of/or come into contact and/or communicate any form with the children or either of them; and,

    (b)causing or permitting [Mr B] to attend at [the mother’s home] or any other place at which the mother may from time to time reside, including when the children are not present at the residence.

30. There is no evidence, and the father does not allege, that the mother has breached the orders which were made in July 2019. Mr B has attended at the mother’s home in the evenings after the children are asleep.

31. Senior counsel for the father confirmed that the intention of the orders sought by the father was that, for example, on a weekend when the children were in the care of the father, the mother could not invite Mr B to a dinner party at her home. Of course, as senior counsel for the mother submitted, nothing would prevent the mother from going to Mr B’s home or to any other place in his company.

32. The father holds concerns that Mr B has an undue influence over the mother. Further, the Senior Registrar concluded that the father had, before him, insinuated that Mr B was a paedophile. The father denies that was his intention  but in his affidavit relied upon before me he deposed to a conversation with the mother’s brother in June 2018 where the mother’s brother said:

    Both [my wife] and I do not feel comfortable with [Mr B] being in the presence of the children and in the house. He is weird. He did not acknowledge us, he was walking around the house in sandals and socks, he dresses and acts like a paedophile. [The mother] is oblivious to it she listens to and does whatever he says. We need to do something about this. [My wife] felt sick in his presence.

33. Dr C interviewed Mr B in the course of preparation of his report. He noted that two of the mother’s friends, who are also members of the counselling group, have sworn affidavits in which they depose to the close friendship of the group as a “very tight group of friends who also socialised together” and their observations of an appropriate relationship between Mr B and the children and, in the case of one deponent, with her own children.

34. The mother told Dr C that she had a close platonic friendship with Mr B for 13 years. It was her view that the father’s obsession with Mr B was the main cause of problems in the relationship. Dr C noted:

    I asked [the mother] about her current involvement with Mr B. She said that she still goes to one class a week and she regards him as a friend. She basically described him as quite a gentle person and “not blokey”. He loves plants and gardening. She indicated that over the years she has known him, he did have a girlfriend at one point. She said that he has always wanted children. If I understood her correctly, she felt that he was very appropriate and gentle with her children. She denied that he had ever smacked X, adding that X has never shown any fear of him at all and he still asks about him.

35. Dr C noted:

    She asserts that her husband made numerous derogatory references to Mr B including that he looked like a paedophile. She rejects that she would expose the children to any risk of harm from anyone including Mr B. She asserts that she has observed many interactions between him and the children, particularly X, and that X has always seemed very comfortable and happy in his presence and that he responds well if Mr B censures him. She states that Mr B had attended the home frequently after the separation to assist her with the children but that she would not leave the children in their bedrooms with him. She describes an incident in which Mr B lay briefly on top of the sheets while X was underneath and then said goodnight to X. She said she did not regard this as inappropriate.

36. Dr C reported that the father:

    …said that he accepts that his wife did not have a physical or sexual relationship with Mr B, and he said that he has told her that. He described their relationship as an emotional over-involvement.

37. Dr C reported:

    He told me that he is of the view that Mr B continues to interfere in his wife’s life and in the children’s wellbeing. He said that the correspondence that he has had with his wife about the schooling issue with X did not appear to him to be in her usual style, and he felt he could see Mr B’s hand in that correspondence. He also said that he believes that Mr B has become involved in parenting the children, which was occurring during the relationship, and also disciplining X.

38. Dr C noted, of his interview with the father, that it would appear that the separation was precipitated by “an argument during which he told his wife that if she continued the relationship with Mr B, she should leave the house and leave the children with him.”

39. A number of members of the mother’s family have sworn affidavits in the father’s case. Her brother and her sister have deposed to criticisms of the involvement of Mr B in the mother’s life. The mother’s sister introduced the mother to the counselling group but she, herself, later withdrew. The mother’s brother in law has also sworn an affidavit in the father’s case critical of Mr B “crossing professional boundaries”. The mother’s cousin has sworn an affidavit in the father’s case. She, too, is critical of Mr B’s association with the mother.

40. I am not aware that there are any members of the mother’s family who have not filed affidavits in the father’s case. Thus she is left without their support and it could be assumed that the support of Mr B and the members of the counselling group has assumed some importance for her.

41. Dr C stated:

    I note that Ms D (the mother’s counsellor) had formed the view that Ms Pickford had become rather dependent on Mr B. I would agree with this, and I think it has probably become somewhat amplified by Ms Pickford’s estrangement from her own family of origin and a lack of alternative supports from people who are not aligned with Mr B.

42. Dr C stated about the father’s attitude to Mr B:

    Indeed as I indicate later, some of his accusations appear so lacking in basis that it appears he is determined to undermine her relationship with the children.

43. Dr C said of the father:

    Probably the main issue for him is his single-minded focus on Ms Pickford’s mental illness, her dependency on Mr B, and uncovering misbehaviour in that regard. 

44. Dr C stated:

    There is scanty material which could be regarded as potentially externally corroborative in relation to Mr B parenting himself, or interfering with parenting of the children. On the father’s account, it seems likely that the most he did was more or less instrumental things such as helping prepare meals, being available to collect the children etc., and being capable of playing with X. However I note [the maternal uncle’s] account that he had seen Mr B slap X twice. I am less concerned about the corporal nature of the discipline than the spontaneity of it suggesting a familiar role in X’s life, as does X’s recent questions about when they will see him next. Whether that involvement was inappropriate, unnecessary or perhaps just provocative will be dealt with elsewhere.

45. Dr C did not share the father’s view that Mr B had interfered in the mother’s treatment, stating “…it seems very clear that Mr B has not interfered in her treatment despite the opportunity.”

46. Dr C stated of the mother:

    I am not of the view that her concerns about her husband’s actions are driven either by her mental illness or indeed to any great extent by Mr B.

47. Dr C concluded, in relation to Mr B:

    In my view it would be better for her own sense of autonomy and to avoid intrusive intervention by [the father], if a strict boundary was to be adhered to between her family life and her relationship with Mr B. In my view neither of them can be relied on to self-regulate this appropriately. For that reason it would be appropriate for the Court to make orders to the effect that he was to have nothing to do with the children, and that there is an injunction in place preventing him from visiting the home where [the mother] resides with the children at any time, including when the children are elsewhere and even with their father. If [the mother] still feels compelled to have a relationship with him outside her home, then there is no reason why she cannot conduct this at an appropriate public or private venue.

48. However, despite those recommendations, I do not propose to make orders, on an interim basis, in the terms proposed by the father.

49. The only head of power identified for the making of the order is section 68B of the Family Law Act 1975 (Cth) which provides:

    68B  Injunctions

    (1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

    (a)          an injunction for the personal protection of the child; or

    (b)          an injunction for the personal protection of:

    (i)          a parent of the child; or

    (ii)a person with whom the child is to live under a parenting order; or

    (iii)a person with whom the child is to spend time under a parenting order; or

    (iv)a person with whom the child is to communicate under a parenting order; or

    (v)a person who has parental responsibility for the child; or

    (c)an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of the child; or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

    (d)an injunction restraining a person from entering or remaining in:

    (i)a place of residence, employment or education of a person referred to in paragraph (b); or

    (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

    (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

    (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

50. Firstly, it will be observed that an injunction should only be made where the Court considers it “appropriate for the welfare of the child”.

51. There is no evidence that the welfare of the children will be affected in any way if an order such as the father seeks is made.

52. Neither is there any evidence that Mr B poses any threat to the children’s welfare. Rather, it is the relationship between the mother and Mr B that appears to be of concern to the father.

53. Secondly, it is not clear how the order, in the terms sought by the father, could be said to be “for the personal protection of the child”.

54. However, I am not required to decide that issue because I am not convinced that it would be either “just or convenient” to make the order.

55. The basis for making the order, as posited by Dr C, would appear to be that it might be beneficial for the mother’s “sense of autonomy”. The alternate basis is that the father would be mollified.

56. Neither is a basis for the injunction in the terms sought by the father.

57. Section 68B does not provide a basis on which the mother should be restrained from enjoying the support and friendship provided by persons of her choice or that she should be fettered in her enjoyment of her own home.

58. The order made on 29 July 2019 will not be varied.  

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 August 2020.

Associate: 

Date:  11/08/2020