Pickle and Walker
[2012] FMCAfam 284
•30 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PICKLE & WALKER | [2012] FMCAfam 284 |
| FAMILY LAW – Interim parenting arrangements for child aged three years – child lives with maternal grandmother – mother has previously suffered depression – drug and personality issues – poor relationship between maternal grandmother and mother – time to be spent with mother – should it be supervised – assessment of risk – best interests. |
| Family Law Act 1975, s.60CC Federal Magistrates Regulations 2000 |
| W & W [2005] FamCA 892 Rice v Miller (1993) FLC 92-415 Davis v Davis (2007) 38 FamLR 671 at 697 [114] |
| Applicant: | MS PICKLE |
| Respondent: | MS WALKER |
| File Number: | ADC 2156 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 26 March 2012 |
| Date of Last Submission: | 26 March 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 30 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lee |
| Solicitors for the Applicant: | Bartel & Hall |
| Counsel for the Respondent: | Ms Milen |
| Solicitors for the Respondent: | Jo-Anne N Milen & Associates |
| Counsel for the Independent: | Legal Services Commission of South Australia - [location omitted] |
| Solicitors for the Respondent: | Ms Tydeman |
UNTIL FURTHER OR OTHER ORDER
The child [X] born [in] 2008 live with the maternal grandmother, Ms Walker.
The mother spend time with the child each Saturday commencing 31 March 2012 between 9.30 am until 4.30 pm or at such other times as may be agreed between the parties.
The time specified in order (2) hereof shall take place at the mother’s home and is not to be subject to any form of supervision either formal or informal.
To give effect to order (2) hereof the maternal grandmother or her nominee is to deliver the child to the mother’s home at the commencement of each such period and the mother is to return the child to the maternal grandmother’s home at the conclusion of each such period.
The parties are restrained and an injunction issues restraining each of them from abusing, denigrating or undermining the other in the presence of hearing of the child or permitting any other person to do so.
The parties are restrained and an injunction issues restraining each of them from discussing these proceedings in the presence of the child or permitting any other person to do so.
The matter be listed for trial on 26 and 27 July 2012 at 10.00 am NOTING two (2) days allowed.
The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 28 June 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 13 July 2012.
That on or before 13 July 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
That the applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
During the period of the adjournment it is directed that Mr S update the family report herein pursuant to Section 62G of Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Pickle & Walker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2156 of 2009
| MS PICKLE |
Applicant
And
| MS WALKER |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment concern interim care arrangements for [X] born [in] 2008, particularly whether it is, on balance, likely to be in his bests interests to spend unsupervised time with his mother, Ms Pickle.
[X] has lived predominantly with his maternal grandmother, Ms Walker, since he was a baby. Ms Pickle contracted multiple sclerosis, while she was pregnant with [X]. She also suffered from depression following [X]’s birth.
As a result of these matters, Ms Pickle and [X] moved in with Ms Walker, when [X] was around three months of age. At the time, Ms Pickle conceded that she needed support and assistance in caring for [X] because she herself was significantly unwell.
In these circumstances, the parties to the current proceedings – Ms Pickle “the mother” and Ms Walker “the grandmother” ostensibly agreed on some consent orders for [X]’s care.
They agreed that they would share parental responsibility for [X], whilst the mother lived in the grandmother’s home, but if the mother left this property, [X] would continue to live with the grandmother. Orders to this effect were made by the Family Court at Adelaide on 29 June 2009.
[X]’s father removed himself from the mother’s life prior to [X]’s birth. He has never had any form of relationship with [X] and has played no part in these proceedings.
The arrangement whereby the mother and [X] would live with the grandmother soon broke down. Ms Pickle moved out in July 2009, leaving [X] behind. The circumstances surrounding this incident continue to reverberate for each of the parties.
There is considerable controversy between them as to whether the mother, in effect, abandoned [X]’s care or whether the grandmother utilised the earlier consent order, the implications of which the mother did not fully understand when she agreed to it, as a means to curtail [X]’s proper level of relationship with his mother.
It is common ground between the parties that they have had an uneasy relationship since Ms Pickle was a teenager. She is now in her early thirties. Ms Walker disapproves of many aspects of Ms Pickle’s lifestyle, particularly the number of partners she has had in the past.
The mother did not immediately begin proceedings following her departure from the grandmother’s home. Rather, a process of family mediation, involving Ms Pickle’s psychologist, was embarked upon. Later there was a conference at the Legal Services Commission, at which it was agreed that the mother would spend time with [X] each Saturday and Sunday between 10.00 am and 2.00 pm, provided this time was supervised by the mother’s stepfather (the grandmother’s husband) Mr Walker.
The relationship between the parties has continued to deteriorate. The grandmother obtained a restraining order against the mother, in the South Australian Magistrates Court, on 11 May 2011. The mother’s position is that it was the grandmother who assaulted her, rather than visa versa.
It is the grandmother’s position that [X] has been exhibiting signs of mental disturbance following his visits to his mother. In these circumstances, she has sought professional counselling for him, from a psychologist, Ms D. Ms D’s view of the matter is central to the stance the grandmother has taken in the current proceedings.
Ms Walker continues to hold concerns that the mother remains psychologically compromised and so incapable of properly parenting [X]. In addition, she continues to hold concerns that the mother’s lifestyle is essentially an anti social one, involving significant levels of illicit drug use.
These concerns arise because of previous medical interventions involving Ms Pickle, which include periods of hospitalisation for psychiatric treatment, following suicidal episodes and a diagnosis of borderline personality disorder.
On the other hand, it is the mother’s position that her multiple sclerosis is currently in remission and her depression has resolved. She does however continue to take a suite of prescription drugs including duromine and oxycontin for pain associated with her multiple sclerosis, as well as diazepam.
Ms Pickle is of the view that Ms Walker is intent on removing her as a proper parental influence in [X]’s life, in order to satisfy her own emotional needs. In these circumstances, it is Ms Pickle’s position that orders should be made which will result in a gradual return of [X] to her care.
For obvious reasons, this is a difficult case. There is much conflict between the parties – both emotionally and in terms of factual matters. As a consequence, it appeared to me be appropriate that [X] be independently represented in these proceedings.
[X]’s representative is Ms Karen Tydeman, an experienced family law solicitor in the employ of the Legal Services Commission. She is to be regarded as a party to the proceedings, of equal significance in them to the mother and grandmother.
Ms Pickle commenced these proceedings on 22 March 2011. On both a final and interim basis, she sought orders that [X] live with her and the grandmother spend time with him at times to be agreed between the parties or as specified by the Court.
The grandmother responded to this application on 31 May 2011. On both an interim and final basis, it is her position that she should have sole parental responsibility for [X], who should live with her. It is her position that the mother should only have supervised time with [X].
On 2 June 2011, the parties agreed that [X] should continue to live with the grandmother and should spend four hours per week with the mother, with the time to be supervised by Mr Walker. Importantly and at this early stage in the Court process, the parties agreed to commission a psychologist, Mr S to prepare a family assessment report in the matter.
Since June of 2011, Ms Pickle has been spending this weekly supervised time with [X]. In the context of the current hearing, it is her position that the time has come for her to begin to have unsupervised time with [X], although it remains her position that ultimately the child should live predominantly with her.
The grandmother’s position is that her concerns about the mother remain unassuaged. She also has concerns about some drug screen testing results, which the mother has presented to her.
However, her major concern is that [X] is alleged to be unsettled by the visits to his mother and Ms Pickle herself has behaved inappropriately during the visits. In particular, she has spoken inappropriately to the child about his grandmother and attempted to influence the child against her.
In addition, Mr Walker is now no longer willing to remain a weekly supervisor pursuant to the current regime. He is now only willing to be a supervisor on a fortnightly basis.
Logistical issues have also arisen. Mr and Mrs Walker continue to live in [Suburb omitted] on the [location omitted]. Ms Pickle, who previously lived fairly close by, has now moved to the southern suburbs of Adelaide. I am told it now takes around 45 minutes to drive between the parties’ respective homes.
In all these circumstances, it is the grandmother’s position that the best outcome for [X] is that he should spend time with his mother only in a professionally supervised session. In this regard, she advocates the use of the [omitted] Children's Contact Centre.
It is this dispute which falls for the Court’s deliberation at this interim stage. Needless to say, the issues raised have generated considerable heat between the parties, who seem to have become even more divided.
The legal principles applicable
Interim hearings have to take place in a shortened form. There is not time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the Court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
As such, at the interim stage, it is very often impossible for the court to resolve disputed issues of fact. In this case, there are many such disputes. The main ones centring on the mother’s personality and lifestyle and the effects of those on [X], including during the last nine months or so of supervised visits.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act 1975 [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with his/her parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The fact of parenthood is an important and significant factor in considering which of the parties’ proposals is likely to best advance a child’s welfare. However, there is no presumption in favour of a parent over any other relative or individual, when a parenting order is made.[1]
[1] See Rice v Miller (1993) FLC 92-415
Rather, the best interest of any child concerned is the essential element of any decision making process concerning that child and if this results in a child living with a grandparent, in preference to a parent, then this is the outcome that should be ordered.[2]
[2] See Davis v Davis (2007) 38 FamLR 671 at 697 [114]
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
The mother approaches the case on the basis of the importance of [X] having a meaningful level of relationship with her arising from the parental connections between the two. It is essentially her case that [X]’s relationship with her will be an incomplete one, if she is only able to interact with him for limited periods of time each fortnight, either in the artificial and institutional setting of the Children’s Contact Centre, no matter how well run or in potentially stressful and conflictual circumstances involving Mr Walker, a person with whom she does not have an easy or trusting relationship.
On the other hand, it is the grandmother’s position that the Court should accord pre-eminence to the need to protect [X] from the potentially serious psychological implications of being exposed to some form of neglect or abuse as a result of interacting with his mother in an unsupervised setting.
It is her position that the uncertainty about the mother’s mental health; drug use; and other issues surrounding her allegedly difficult personality; are just too risky for the Court to countenance unsupervised time between mother and child at this stage.
Accordingly, the central issue in the case at present time concerns an assessment of risk. There is a risk for [X]’s ongoing emotional development if he is deprived of the opportunity to have a proper level of relationship with his mother because of potentially unreliable and inchoate allegations of abuse.
On the other hand, if it be the case that the mother has behaved inappropriately to [X] in the past and is likely to do so again in future, it may be psychologically detrimental to him to interact with his mother in an unsupervised setting, in which her behaviour cannot be monitored.
The High Court has stipulated that the test to be applied to the assessment of such risks is the “unacceptable risk test”. The test being expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of coming to some form of emotional or physical harm as a result of abuse.
If the court does make a finding that an unacceptable risk of abuse exists, it is then necessary to consider what, if any, parenting orders should be made, particularly orders for the child concerned to spend time with a parent and what conditions should attach to such orders.
Again, this exercise involves an estimation of the magnitude of the risks involved and how those risks can be best managed, in all the circumstances of the particular case. Because the potential consequences of severing a worthwhile relationship, between the child and one of his or her parents is potentially so detrimental to the child concerned, the termination of such a relationship is in most cases the last resort.
However, once again, I must bear in mind the interim nature of these proceedings and the fact that any decision made at this interim stage is capable of reversal or amendment at the final hearing stage, or indeed on further interim hearing, when more evidence is likely to be to hand.
But, nonetheless, notwithstanding the provisional nature of any interim order, I must keep in the balance the potential detriments, to a child, of having a potentially meaningful parental relationship significantly curtailed.
The family report
In my view, the family report of Mr S is a significant piece of evidence in this case. I appreciate that Mr S’s report and the methodology leading to it have not been subjected to any detailed scrutiny.
However, the fact remains that he was able to observe each of the parties with [X] and he approached the case from an independent and professional stance. In addition, Mr S reviewed a number of reports from other professionals regarding their involvement with Ms Pickle.
Mr S described the grandmother “to be highly vigilant and mildly anxious in regards to the child’s well-being and functioning.”[3] However, he also noted that [X] interacted easily with the grandmother and Mr Walker, who were very attached to him.
[3] See Family Report dated 22 August 2011 at paragraph 86
In terms of the mother’s interaction with [X], Mr S presented a more lengthy report. He said as follows:
“The child was observed interacting in the home of Ms Pickle as well as at a park situated across the road. The child appeared extremely comfortable and confident when with Ms Pickle with no indications of fear or hesitancy. They engaged in a variety of age appropriate activities which were spontaneous and attachment building. The child demonstrated no signs of ritualised autistic traits, tolerated physical touch and proximity, held eye contact well and had a range of emotional expression. His level of verbal expression was advanced for his age.
The child appeared familiar with his surroundings and referred to his bedroom as equally being his but that the house was” mommies”.
Ms Pickle interacted with the child well, at times following the child's lead and at other times being directive. She was well acquainted with the child's routine, likes and dislikes. Adherence to proper manners such as please and thank you was done in a gentle instructive manner.
Ms Pickle was attentive to the child's safety such as holding hands while crossing the road, responsible play on playground equipment with constant supervision. Ms Pickle did not exhibit any signs of restricted mobility or strength in her movements from multiple sclerosis.
In the playground, the child and Ms Pickle interacted at various times with other children and mothers in a normal fashion and without incident.
At the end of observations the child was returned to the care of Mr Walker. The child was clearly distressed and wanted more time with Ms Pickle. This was well managed by Ms Pickle who consoled the child notwithstanding the great emotional turmoil she was experiencing. The tears flowed freely once the child was out of sight.
Inspection of both parties residence’s revealed child safe environments with no readily apparent risks or dangers either internally or externally.”[4]
[4] Ibid at paragraphs 88-94
Mr S characterised the relationship between the parties as being one of deep seated and long standing acrimony. In his assessment, the major issue in dispute between the parties centred on the mother’s mental health, the available records indicating that Ms Pickle had a history of overdosing, self harm and psychiatric admissions.
In this context, Mr S was well aware that it was the grandmother’s position that the mother, although highly intelligent, was a manipulative and disingenuous person, who had a capacity to mislead and misstate to professional people the actual extent of her psychiatric condition. Essentially say and do the right things, when she was subject to scrutiny.
In addition, Mr S indicated that the grandmother had concerns about the mother’s ongoing drug usage, particularly of illicit drugs, although it was also her view that the mother had no need of prescribed analgesics in respect of her Multiple Sclerosis.
In summary, Mr S described Ms Walker to have a slight state of anxiety about her. He described Ms Pickle as a vulnerable personality. As such, he was concerned at her propensity to make poor decisions whilst stressed. Mr S conceded that it was unknown to him to what degree the poor choices were as a result of situational stresses and/or in response “to the caustic relationship she has with Ms Walker”.
Overall, Mr S assessed that there was no significant difference in the quality of interactions between [X] and each of the parties concerned in the case, although he was observed to be “slightly more verbal and animated when with Ms Pickle”.
Overall, Mr S was in favour of [X] being reunited with his mother but remained concerned that this process of reunification was likely to be fraught with all manner of difficulties and, as such, required extensive support.
In these circumstances, he made the following specific recommendations:
·an Independent Children’s Lawyer be appointed;
·a psychiatric assessment of the mother take place;
·if the psychiatric assessment found that Ms Pickle represented no risk of harm to [X], the requirement for supervision be suspended;
·the mother undertake a course of random urine drug testing; and
·the family report be updated in six months time.
Other relevant matters
Mr S’s report was released to the parties in August of 2011. On 1 September 2011, I implemented some of its recommendations with the consent of both parties. Essentially, an Independent Children’s Lawyer was appointed; it was directed that Ms Pickle attend upon a psychiatrist for the purposes of undertaking the report recommended by Mr S; and further she undergo a regime of regular supervised drug screen testing. However, no other change was made to the regime by which Ms Pickle interacted with [X].
On 24 January 2012, the grandmother filed an application in which she sought to reduce the mother’s time with [X] and for it to occur in a children’s contact centre. In support of this application, she asserted that Mr Walker had reported to her that the mother had behaved inappropriately towards [X], calling him aside and whispering in his ear, during supervised visits. She also asserted that [X] had behaved aggressively at his kindergarten.
It was also the grandmother’s position that the mother had failed to comply with the drug screen testing protocol earlier ordered the Court. Ms Pickle has supplied four drug screen tests up to the end of 2011. The grandmother alleges that there has been a breach in respect of the requirements for these tests to be supervised and a number of unexplained anomalies have arisen in respect of the results themselves, particularly that traces of benzodiazepines, opiates and amphetamine type substances have been detected in the mother’s sample, albeit in trace quantities, which require further testing.
Ms Walker also relies on a psychological report, from Ms D dated 17 December 2011. In this report, Ms D indicates that she has provided psychological support to Ms Walker during 28 sessions extending over a period of about 18 months. She has seen [X] on about five of these occasions. The child and Ms Walker were referred to Ms D by the families’ general medical practitioner as a result of [X] displaying tantrums and unsettled and distressed behaviour. The process began in July of 2010.
On the initial visit, [X] was described by Ms D as being a child with developmental stress and displaying a high state of anxiety. At this stage [X] was apparently seeing his mother regularly on an informal basis. This was prior to Ms Pickle commencing these proceedings. It was also prior to Ms Walker successfully obtaining a restraining order against Ms Pickle.
Ms D also reported that once [X] began to see his mother every weekend he began to demonstrate a sharp increase in chaotic behaviour. This is one of the factors which apparently has led to the grandmother wishing to reduce the frequency of the contact visits.
Ms D’s assessment of Ms Pickle can only be informed by what Ms Walker has reported to her. Importantly, Ms D has never observed [X] interacting with his mother.
It is however noteworthy that Mr S and Ms D did have a conversation with one another, whilst Mr S was in the process of completing the family report. In this discussion, Ms D conveyed to him her concerns that the mother may interact with [X], in a different fashion, when she was not being directly observed and this might “be significantly detrimental to child and the child may be traumatised at an attachment level.”
In the light of this opinion, Ms D has recommended that any future interactions between Ms Pickle and [X] occur in a professionally supervised setting at a children’s contact centre. Ms Walker is content of course to accept this recommendation.
In my view, the difficulty with Ms D’s report and particularly its recommendations is that they have not been solicited by the Court. In addition, to a large extend, given that Ms D has never seen [X] with Ms Pickle, some of her concerns are conjectural in nature.
In these circumstances, in my view, at the interim stage, it is likely to be imprudent for the Court to place more weight on Ms D’s opinion than on Mr S. Mr S’s report was solicited by the Court and included a period of observed interaction between [X] and Ms Pickle. In addition, it cannot be said that Mr S was unaware of Ms D’s concerns before he made his own recommendations.
Mr Walker has apparently come to the end of his tether so far as supervising the mother’s time with [X] is concerned. In his affidavit filed in support of the grandmother’s application, he has deposed that he finds it almost impossible to perform the Court appointed supervisory role. He has kept a detailed diary of his involvement with the mother.
In his affidavit, he outlines his concerns in generic terms as follows:
“… she feeds him chocolate notwithstanding my advice that she should not do so because it impacts on his behaviour. She also takes [X] aside sometimes for as long as 5 minutes into a room in her house where [X]’s toys are kept. She insists on taking [X] into the room alone. If I object the mother becomes angry and this causes upset to [X]. Because I appreciate that [X] does need time with his mother, I have ceased objecting because I do not want to cause distress to [X]. It is really a very difficult situation for me and I feel conflicted in relation to my duty to the Court and [X]’s distress.
There have also been incidents when the mother whispers into [X]’s ear so that I cannot hear what she is saying to him. When I have objected the mother becomes angry and yells at me. This again causes distress to [X] and again in this situation I feel conflicted as stated in the last paragraph herein.”[5]
[5] See Affidavit of Mr Walker filed 24 January 2012 at paragraphs 4-5.
Ms D characterises Mr Walker as a decent person. I have reason to doubt this characterisation. However, he is a person closely aligned with the maternal grandmother.
A reading of his affidavit indicates that there is a significant level of tension between him and Ms Pickle. Mr Walker has criticisms of the tidiness of the mother’s household. He also disapproves of the mother’s current partner. In all the circumstances of the case, the benefits of Mr Walker continuing to be involved as a supervisor appear questionable.
In early February of 2012, on the instigation of the Independent Children’s Lawyer, Ms Pickle was psychiatrically examined by Dr B. His report was filed with the Court on 22 February 2012. He had access to Mr S’s family report and a significant number of the copious affidavits already filed in these proceedings.
In recounting her history to Dr B, the mother indicated that she was currently being prescribed duromine; oxycontin for pain associated with multiple sclerosis; and diazepam to assist in sleeping.
Ms Pickle also provided a history of a disrupted childhood, which she largely ascribed to the impaired parenting of her mother. She claimed to have been sexually abused by the mother’s then partner, when she was aged seven.
Ms Pickle reported that she had attempted suicide at age 17 and conceded significant episodes of mental health problems associated with the onset of multiple sclerosis. She also acknowledged that after [X]’s birth, she became depressed and subsequently suicidal again, which led to her being admitted to a psychiatric hospital.
The mother was critical of the grandmother for not providing her with a great deal of support during this difficult period. Rather, she described her mother as “taking over”. She found Ms Walker to be manipulative and nasty.
Ms Pickle indicated to Dr B that she had been referred to a dialectical behaviour therapy program, which she had found useful. She denied the gravamen of the grandmother’s assertion that she had tried to smother [X], when he was eight months old and she had been unable to sooth his crying.
Dr B was of the opinion that the mother’s depressive illness had resolved. He noted that multiple sclerosis was often associated with a significant depressive reaction, as was the birth of a child. Accordingly, he did not think that the mother’s history of depression was relevant to any assessment of the mother’s parenting capacity.
Dr B was also of the opinion that the poor relationship between Ms Pickle and Ms Walker and the current arrangements in respect of [X] were significant social stressors in the mother’s life at present. Dr B also noted in assessing the mother’s capacity to cope that she had a relatively good employment history.
Accordingly, from Dr B’s perspective the most significant factor in his assessment of the mother was in terms of her personality and the implications of that personality in her ongoing parenting of [X]. As has previously been noted, Ms Walker is highly critical of the number of partners Ms Pickle has had, which she believes is highly unsettling and emotionally disturbing for [X].
Dr B opined that Ms Pickle had some immature personality traits of the borderline type, but also presented with some strengths in her personality, particularly in terms of her employment history. He did however query her inability to maintain a long term relationship and her propensity to blame her mother for all her historical problems.
Dr B concluded his report with a guarded statement regarding the mother’s future involvement with [X]. He said as follows:
“Therefore my final opinion is that the depression has resolved. The issue that needs to be decided is whether the personality of Ms Pickle is such that she is a suitable mother for [X]. There are vulnerabilities in her personality which will lead to inappropriate behaviours. If the Court accepts the version of events put forward by Ms Walker, then the personality of Ms Pickle is more disturbed that she has indicated. Although as a psychiatrist I can identify the personality issues, in this case borderline trains, what I cannot determine from an interview is how those traits are manifesting in day to day life. Regard to the collaborative information of others is required. The Court is the institution to decide these facts. Consequently I cannot come to an opinion regarding Ms Pickle’s contact with [X]. Ms Pickle has significant vulnerabilities, but whether they are manifesting as asserted by Ms Walker is for the court to determine.”
The mother’s position, as outlined in her most recent affidavit, is that the relationship between her and the grandmother and Mr Walker has recently significantly deteriorated. It is also her current position that the time she spends with [X], at present, is inadequate to sustain a relationship between the two, particularly if Mr Walker remains as the supervisor.
Her description of the time which she does spend with [X] echoes the description provided by Mr S from the observed interaction. The mother says that [X] enjoys the time he spends with her and appears very happy to see his mother and often expresses a reluctance to leave.
The mother is particularly concerned at her impression that the maternal grandmother is encouraging [X] to refer to her (Ms Walker) as “mum”. In the mother’s view this is unequivocal evidence that Ms Walker wishes to supplant her as [X]’s mother.
Ms Pickle asserts that she has done her best to comply with the requirement that she undergo regular drug screen testing. She is not currently in paid employment and the costs of a rigorously supervised test are an expensive burden for her. It is her position that if there are any traces of amphetamines; codeine; or benzodiazepates; in her samples, this is as a result of her prescribed medication regime.
The mother’s position is that she is now stable in her accommodation and is living with her current partner, Mr E, in [Suburb omitted]. Her preferred outcome, at this interim stage, is as follows:
“I have completed 6 months of drug testing with favourable results. My MS is in remission and I seek the support of my general medical practitioner if needed. The main cause of distress in my life is the fact that [X] does not live with me. I understand that he has a close relationship with Mr Walker and the respondent. I believe that I can try to foster a better relationship with them in the event that I was able to see [X] under less restrictive terms and more often. If fee they should give me a chance to prove them wrong. I would like to aim for a graduated return to [X] living with me and spending substantial and significant time with the respondent. A the very least I would like for [X] to spend unsupervised time with me on a substantial and significant time basis effective immediately.”[6]
[6] See mother’s Affidavit filed 27 February 2012 at paragraph 107
Conclusions
Ms Tydeman, in her submissions to me during the interim hearing, indicated that this was a case requiring the Wisdom of Solomon. I do not have recourse to such wisdom. Rather I must determine the case by reference to the principles contained in the Family Law Act 1975 and according to the directions of superior courts.
I have spent a considerable portion of these reasons for judgment in an attempt to set out the history of the matter to date and outline the parties’ competing and differing views of that history. I acknowledge that the factual circumstances are complex and there are many factual disputes between the parties.
I also accept that [X] is a vulnerable child. How could it be otherwise? His early childhood has been one marked by conflict between those who are significant to his care. In addition, his mother has been seriously ill at significant points of his development.
However, notwithstanding the significant factual complexities surrounding the case, at the end of the day, the legal issue arising is a simple one. It concerns the assessment of risk. That is not to say that this task is not one which is without a significant degree of difficulty, given the untested and provisional nature of the evidence available at this stage, particularly in the form of Mr S’s report.
Mr S is of the view that [X] currently has a meaningful level of relationship with his mother and, as such, it is likely to be beneficial to him to be able to interact with her on a more extensive basis and in an unsupervised setting.
[X] clearly knows his mother and I have no reason to think anything other than that he loves her. Accordingly, in my view, there is a potential risk to [X]’s ongoing development if he is deprived of having a fully developed relationship with his mother because the two are able to interact only on a limited basis or in the artificial and institutional confines of a child contact centre.
Meaning in parent/child relationships comes from both the quantity and quality of time a parent spends with a child. Four hours per fortnight is an extremely limited amount of time in which to develop and extend a parent/child relationship.
At the present time, for understandable reasons, Mr Walker wishes to withdraw as the supervisor of the mother’s time with [X]. Given the contents of his most recent affidavit, it seems that, in any event, his presence as a supervisor has the potential to aggravate rather than ameliorate the difficult and conflicted relationship between the parties. He also concedes that his capacity to provide meaningful supervision is somewhat limited.
It seems to me to be highly unlikely that any layperson proposed by the mother to supervise her time with [X] will be satisfactory to Ms Walker, who has been described by Mr S as anxious about [X]. Accordingly, the alternatives open to the Court, at this stage, for the mother to interact with [X] are either at a children’s contact centre or in the unsupervised setting of the mother’s home.
In W & W[7], the Full Court spoke of a tension between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision which can impact on the emotional wellbeing of the child concerned by a curtailment of his or her parental relationship. Supervision has limitations. It may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. It may at best be a temporary or stop-gap measure.
[7] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
However, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome because otherwise excessive anxiety on the primary caregiver’s part may adversely impact on that parent’s ability to care for the child concerned. This exercise is part of the court’s task in assessing the magnitude of the risk involved and whether it is unacceptable.
In W & W[8] the Full Court said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[8] W and W [Abuse allegations: unacceptable risk] (Supra) at paragraph 115
This draws me to the other aspect of risk arising in this case. It is the grandmother’s position that the mother’s personality and lifestyle represent a risk to [X] and, as such, it would be unacceptable for the Court to countenance the child spending unsupervised time with his mother. It is necessary for me to assess the extent of that risk and construct orders commensurate with such assessment.
Ms Pickle has been spending weekly supervised time with [X] for a period approaching one year. The parties have very differing views as to the success of these visits. For reasons already provided, I believe that Mr S’s assessment of [X]’s capacity to cope with these visits is likely to be a more reliable one than Ms D’s.
It is Mr S’s opinion that [X] interacts comfortably with his mother, who responds appropriately to his needs. Importantly, Mr S noted no distress in how [X] interacted with his mother. Significantly, he reported that the child wanted to extend his time spent with the mother.
Accordingly, in assessing the level of risk, the question turns to whether Ms Pickle is likely to behave in one way, when she is professionally supervised or observed and in another way, which is potentially emotionally abusive towards [X], when the spotlight is turned away from her. Dr B finds himself unable to answer the question, regarding it as being an evidentiary matter for the Court.
At this stage, it is a question to which it is impossible to provide a definitive answer, in the absence of credit findings in respect of the parties. As such the mother’s future unsupervised interaction with [X] may pose some form of risk to him. The consideration therefore is whether that risk is so great that it would be unacceptable for the Court to take it at this stage.
In my view, the most significant piece of evidence in assessing this degree of risk is Mr S’s assessment. He was in favour of the mother’s time with [X] being advanced and the requirement for supervision lifted on the basis of his assessment of the quality of the relationship between the mother and child.
Mr S did however stipulate that conditions should attach to such an alteration of the contact arrangements. In this regard, Dr B’s psychiatric assessment does not unequivocally advocate one way or other. When the report’s contents are boiled down, Dr B’s view is that the mother does not currently suffer from a psychiatric illness but has exhibited signs of personality disorder in the past, which were not clearly manifested to him during interview.
Nor were those personality issues apparent to Mr S in the family report process, particularly in terms of [X]’s response to his mother and her interactions with him. The interaction between [X] and his mother was, from Mr S’s perspective, warm and loving but otherwise unexceptional.
The grandmother’s evidence is that her experience of the mother is of an impulsive and uncontrolled person who, from her observations of her, manifestly has serious issues with her personality. However, in my view, for what I regard to be obvious reasons, Ms Walker is unlikely to be a dispassionate observer of her daughter’s behaviour, given the difficult relationship between the two, beginning with Ms Pickle’s adolescence. In these circumstances, I believe I must be careful not to attribute too much weight to Ms Walker’s views in the assessment of risk, at this interim stage.
I acknowledge that the results of the mother’s regime of drug screen testing are not an unequivocal factor in support of her case. However, nor do they positively rule out her application. The grandmother is not in a position to provide further evidence to support her suspicions about the results. It may indeed be the case that there is some substance to the mother’s position that the drug traces found relate to her suite of prescribed medication.
At this stage, it is my view that the greater level of risk arising in this case relates to the danger of [X] losing the potential to have a warm and intimate relationship with his mother. As Ms Tydeman puts it, a reduction in the time to fortnightly visits is “going backwards” so far as the development of [X]’s relationship with his mother.
Both Ms D and Mr Walker have criticisms that Ms Pickle forms relationships, which do not last. [X] has the potential to become attached to these persons, who subsequently disappear from his life causing him emotional disequilibrium.
In Dr B’s assessment, this propensity on the mother’s part to embark impulsively on relationships, which rapidly fail, may be part of the immature or borderline personality disorder which affects her. This however cannot be definitively determined by me at this stage.
However, whilst acknowledging the potential serious impact of this behaviour on [X], in my view, it would be a disproportionate response to the degree of risk that Ms Pickle only be able to spend four hours supervised time with [X] each fortnight at a children’s contact centre.
In addition, the utilisation of such a centre can only be a stop-gap response to the difficulties in this case. This is not the sort of case where indefinite supervision is a probable outcome, particularly given that Mr S currently recommends that [X] should be reunited in his mother’s predominant care.
There are other difficulties arising from the utilisation of professional contact centre in this case. Rightly or wrongly, the parties agreed on a lay supervisor, in the form of Mr Walker, in mid 2011. At the time, this was thought to be a better first step than a children’s contact centre.
There are many calls upon the resources of the [omitted] Children's Contact Centre. I am informed that, at present, the induction process into the centre takes around six weeks. In all these circumstances, in my view, the involvement of the children’s contact centre, in this case, does indeed represent a retrograde step, so far as the relationship between [X] and his mother is concerned.
Ms Walker is unlikely to accept easily any outcome for [X], which does not accord exactly with her preferred result. Mr S regards her as being anxious. Ms Pickle regards her as dictatorial. Given these circumstances, it is premature to consider substantial and significant time at this juncture or indeed overnight time, given Ms Walker’s likely anxieties. I hope that a period of successful unsupervised time can act as a reassurance for Ms Walker. In my view, the time has come for such an experiment.
In my view, the balance between the various risks arising in this case is for the mother to spend regular weekly periods of daytime with [X], in an unsupervised setting, within the confines of her home. At this stage, I propose from 9.30 am until 4.30 pm each Saturday.
I will underline to all the parties concerned that the dispute between them is their dispute, not [X]’s dispute, by making injunctions restraining each of them denigrating, abusing or undermining the other or permitting any other person to do so. It also appropriate that the parties be similarly restrained from discussing the potential outcome of this case and indeed the proceedings with [X] himself.
I had considered making an order requiring Ms Pickle’s partner to withdraw from her premises during any periods of time [X] is spending with her. I have come to the conclusion that this would be an unwarranted and artificial restriction on the mother and her partner.
I do however acknowledge the dangers arising from [X] becoming attached to the men who come into the mother’s life only to become confused and disappointed when they later disappear. However at this stage, I believe that this is an issue for the final hearing and should not act as an impediment to the mother’s time with [X] being increased.
I will also continue the injunction made on 1 March 2012, to which the grandmother agreed, which restrains her from permitting [X] to call her anything but “Oma” and from calling Mr Walker anything but “Opa”. Clearly, this is an issue of some sensitivity to Ms Pickle, for understandable reasons.
This decision is made at the interim stage. As I have already explained, this means it is not possible for me to resolve the many issues of factual dispute between the parties. Rather, on the basis of the evidence available to me, I must determine where risk lies, for [X], in terms of his relationship with his mother.
At this juncture, I have decided that the best outcome for [X] is likely to be one in which he is able to extend and I hope normalise his relationship with his mother rather than to have that relationship further confined.
However, it seems to me that it would be better to allocate a final hearing sooner rather than later so that the various factual issues may have a more comprehensive airing and, if possible and appropriate findings of facts made in respect of them.
I appreciate that an early date may be premature for final hearing, particularly if the central issue in the case remains re-unification of the child in the predominant care of the mother. The date to be allocated in July may be re-visited if this is the case.
The period between now and the date allocated for the final hearing will enable Mr S to revisit the family and update his family report in the context of Ms Pickle spending more time with [X]. I will allocate two days for the final hearing.
As Ms Walker is not a parent to [X], the strict application of section 61DA does not apply to this case. In any event, given the extreme level of tension between the parties, it is not currently appropriate to allocate formal parental responsibility for [X] between them, other than each will have day to day responsibility for him, when he is in each of their respective cares.
For all those reasons, the orders of the Court will be as set out the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 30 March 2012
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