Pinson & Pinson (No 4)
[2021] FCCA 1844
•12 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pinson & Pinson (No 4) [2021] FCCA 1844
File number(s): BRC 3734 of 2019 Judgment of: JUDGE CASSIDY Date of judgment: 12 August 2021 Catchwords: FAMILY LAW – mental health issues – allegations of domestic violence – where the Mother applied to be excused from cross-examination – where the child has developmental issues– where the Mother seeks residence or in the alternative equal or substantial and significant time – where the ICL and Father propose that the Father have sole parental responsibility, and that the child live with the Father and spend unsupervised time with the Mother Legislation: Family Law Act 1975, ss 60CC(2), (2A), 60CC(3), (3)(a)-(b), (3)(d), (3)(f), 61DA(1) Number of paragraphs: 110 Date of last submission/s: 7 July 2021 Date of hearing: 6-7 July 2021 Place: Brisbane Counsel for the Applicant: Ms Barnes Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: Simpson Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
BRC 3734 of 2019 BETWEEN: MR PINSON
Applicant
AND: MS PINSON
Respondent
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
12 AUGUST 2021
THE COURT ORDERS ON A FINAL BASIS:
Parenting Arrangements
1.That all previous parenting Orders be discharged.
2.That the child X born in 2011 (herein, “the child”) live with the Father.
3.That the Father have sole parental responsibility for the child's ‘major long-term issues’ and, at least 7 days prior to making any decision , he notify the Mother in writing of the proposed decision together with any relevant information and invite the Mother to respond in writing within seven (7) days. Upon receiving the written response from the Mother, the Father shall consider it and inform the Mother of the decision he has made within seven (7) days and the reason for it.
4.That the Father is to keep the Mother advised of:
(a)Details of appointment/s made for the child to attend on any specialists, medical or allied health practitioners which details are to include the name of the practitioner and the time and date of the appointment/s with the Mother to be at liberty to attend at those appointments with the practitioners retaining the ultimate discretion as to which parent, if either, attends the appointment/s; and
(b)Details of the child 's school enrolments
5.That the child spend time with and communicate with the Mother at all times as agreed between the Mother and the Father but failing agreement at least:
(a)Each alternate weekend from after school Friday to before school on Monday;
(b)On the child 's birthday if a school day from after school until 7pm, or if not a school day from 2pm to 5pm;
(c)Mother' s Day weekend the child will be with the Mother from after school Friday to before school Monday;
(d)Father's Day weekend the child will remain with the Father and the Mother's weekend time as provided for in Order 6a is suspended and will commence again the following weekend;
(e)From 2pm Christmas Eve to 2pm Christmas Day in even numbered years;
(f)From 2pm Christmas Day to 2pm Boxing Day in odd numbered years;
(g)One half of the Easter, June/July and September/October school holidays with the Mother to have the first half in even numbered years and the last half in odd numbered years;
(h)On a week on week off basis for the Christmas school holidays with the Mother to commence in the first week in in odd numbered years and second week in even numbered years; and
(i)Telephone or SKYPE or Facetime each Tuesday and Thursday between 6pm and 7pm with the Father to facilitate the communication and provide the child with privacy during the calls.
6.That all changeovers that do not occur at the child’s school will occur at the playground situated in McDonalds Suburb W unless as otherwise agreed to between the Parents in writing.
7.That neither parent is to discuss any adult issues with the child at any time included but not limited to the following:
(a)The history of the relationship between the Mother and the Father; and
(b)What occurs in the other Parent's household.
8.That neither Parent is to denigrate the other Parent to or in the presence or hearing of the child.
9.That the Mother is to continue to engage with her treating medical and allied health professionals as and when directed to do so.
10.That the Father is to send a text message to the Mother as soon as reasonably practicable should the child require any emergency medical treatment while in his care.
11.That the Mother is to send a text message to the Father as soon as reasonably practicable should the child require any emergency medical treatment while the child is spending time with her pursuant to these Orders.
12.That these Orders be sufficient for each Parent to:
(a)Attend the child ' s extra curricular activities, meetings at the school that parents would normally attend such as parent teacher meetings; and
(b)Obtain copies of the child 's school progress reports and school photographs at their own expense.
13.That each parent is to keep the other apprised of their current residential address and contact telephone numbers and advise the other of any change within 48 hours of such change.
Medical/Psychological Treatment
14.That the Mother be restrained and an injunction issue restraining her from taking the child to Ms N, psychologist.
15.That the Mother and Father be at liberty to provide any medical, psychological or family reports and a copy of this Judgment to any medical professional treating either parent or the child.
Parenting Orders Programme
16.That the Father complete a Parenting Orders Program with T Counsellors, U Counsellors, or V Counsellors or such other organisation that offers a similar program.
17.That the Father, within seven (7) days of the date of service upon them of these Orders, contact the Parenting Orders Program Co-ordinator (or their nominee) for a program provider referred to above for intake into the program.
18.That the Father shall comply with any reasonable direction of the Program Co-ordinator and in particular:
(a)Attend as requested for the purposes of assessment as to whether he is suitable for participation in the program;
(b)Attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator;
(c)If considered appropriate by the Co-ordinator:
(i)Attend a Triple P parenting program or equivalent parenting program as nominated by the Program Co-ordinator;
(ii)Attend an anger management counselling program as nominated by the Program Co-ordinator;
(iii)Attend such drug and alcohol programs as may be nominated by the Program Co-ordinator.
19.That for the purposes of the program, a copy of these Orders will be provided by the Father to the Program Co-ordinator;
20.That the Father be at liberty to supply to the Program Co-ordinator a copy of any Family Reports that have been prepared for these proceedings.
Discharge ICL
21.That the Independent Children’s Lawyer be discharged save for any appeal.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pinson & Pinson (No 4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Cassidy
INTRODUCTION
This is a parenting matter where the parents have been unable to agree on some parenting Orders for their daughter X born in 2011 (herein, “the child”).
PROPOSALS
Proposal of the Independent Children’s Lawyer
The Independent Children’s Lawyer (herein, “the ICL”) proposes I make the Orders in her outline of case.
If I make these Orders, the child will live with the Father and spend alternate weekends and half of all school holidays with the Mother.
The Father would have sole parental responsibility for health and education and otherwise the parents would have equal shared parental responsibility. At trial the ICL proposed that the Father have sole parental responsibility for decisions.
Proposal of the Father
The Father adopted the ICL’s proposal, save he proposed only two weeks of school holidays in the year, being the first and last weeks of the Christmas holidays.
Proposal of the Mother
I have marked the Mother’s proposal Exhibit 6. Her Counsel sent the proposal in after the trial was finished. He adopted this course because his instructions changed at the time of his submissions.
The Mother seeks equal shared parental responsibility. Her primary position is for the child to live with her and, in the alternative, for the child to live in an equal time arrangement.
BACKGROUND
In this matter the Mother is 45 years old and the Father is also 45 years old. The parties married in 2007. X was born in 2011. X will be 10 years old this year.
The parents separated on 15 February 2018 (herein, “the first separation”). Between February and April 2018 the parties shared the care of the child.
In August 2018 the parties reconciled for approximately six weeks, and then parted again.
The Father is in a relationship with his new partner, Ms B. The Father and Ms B have been in a relationship for approximately three years. Ms B has an adult child from a previous relationship, C, who is 20 years old.
Ms B and the Father have a child together, D, who was born in 2020.
The Father and Ms B do not live together.
HISTORY OF THE LITIGATION
On 11 July 2018, the Father filed an Initiating Application. He sought an interim Order that the child live with him, an ICL be appointed, and that the Mother attend for psychiatric treatment. The Father sought an Order for equal time on a final basis.
The Mother filed her Response on 13 August 2018. The Mother sought Orders that the child live with her and spend time with the Father for four hours on a Saturday in one week and Sunday in the alternative week.
On 18 August 2018 Turner J made interim Orders that provided for the child to live with the Mother. The child was to spend time with the Father each alternative weekend and an overnight in the other week. An ICL was appointed.
On 29 November 2018 Spelleken J dismissed all applications and the ICL was discharged, as neither the Applicant or the Respondent appeared.
On 14 September 2019 the Father filed an Initiating Application where he sought an Order for the child to live with the Mother and spend time with him each week.
On 31 May 2019 Vasta J ordered the Mother file her Response and he appointed an ICL and ordered a s 11F Child Inclusive Conference (herein, “CIC”).
On 7 June 2019 the CIC identified the Mother’s mental health to be a risk factor.
On 13 November 2019 the Father filed an Application in a Case seeking Orders that the child live with the Father and spend supervised time with the Mother at E Contact Service. This Application relied on the report of Dr F, released on 15 November 2019, which identified that the Mother might be a risk to the child.
The Orders of Vasta J made on 19 November 2019 provided for the child to live with the Father and spend supervised time with the Mother at E Contact Service.
On 21 January 2020 the Mother filed a Notice of Appeal of the Orders of Vasta J.
On 12 June 2020 the Mother’s appeal was successful in part, in that the matter was remitted to hear what time the Mother should spend with the child and what conditions would be imposed.
On 17 September 2020 I made Orders for the child to continue to live with the Father and spend increasing time with the Mother in the presence of the maternal grandfather. The Orders provided for the Mother to spend each alternate weekend and every other Thursday night with the child.
X’S EDUCATION AND HEALTH
Ms G, the Family Report Writer, observed:[1]
12.14 X’s speech was noticeably delayed and, as a result, she could be difficult to understand.
12.15 Her conversation and conversation skills were more akin to a younger child, as she was unable to identify where she lived, and had trouble understanding some of the writer’s questions.
12.16 X’s fine motor skills also seem a little delayed (e.g., tying her shoe laces) and she was unsure with her reading and not confident enough to engage in word games.
[1] Affidavit of Ms G filed on behalf of the Independent Children’s Lawyer on 26 March 2021, at paragraphs 12.14-12.16.
Ms G expressed an opinion that:[2]
12.104 From all the information provided, X, at nine years of age, is a girl who is struggling to meet her developmental milestones. She has been exposed to considerable parental conflict and distress, and is only just starting to show an improvement in her intellectual development since receiving academic assistance, as organised by the father.
12.105 At nine years of age, the window for intervention for X is closing. X requires intensive, frequent, consistent, allied health support in order to curb her developmental delays, and it is expected that these interventions include speech pathology, occupational therapy and educational tutoring with literacy support.
[2] Ibid, at paragraphs 12.104-12.105.
The Father has engaged X with a speech therapist. His evidence is that he intends to take X to any experts as recommended by the treating therapists.
Ms G records:[3]
12.100 Documents show that X, when living with her mother, was regularly late for school, and that she continued to present without her homework completed or her school requirements met.
[3] Ibid, at paragraph 12.100.
The Semester 2 Report from 2018 records:[4]
Behaviour: (…) X is showing regular attendance but is consistently late to school.
Homework: Sometimes completes home tasks
[4] Affidavit of Mr Pinson filed on behalf of the Applicant on 4 June 2021 at Annexure 7, page 64.
I note, however, this improved in Semester 2 of 2019 while the child was still living with the Mother:[5]
Behaviour (…) X has shown exemplary attendance at our school this semester. She is exceeding H School’s attendance rate of 94%.
Homework: Usually completes home tasks
[5] Ibid, at page 68
THE MOTHER’S MENTAL HEALTH
There is no dispute on the evidence that the Mother has a serious mental health condition. The nature of the condition is in dispute. The seriousness of the condition is not in dispute. The Mother was so unwell that her Counsel made an Application at the beginning of the trial that she be excused from being available for cross-examination.
This Application was made by the Mr Galloway, a very experienced Counsel who conceded the disadvantage this put his client at but nonetheless pressed the Application. The Application was granted.
There were four medical experts who gave evidence about the Mother’s mental health, including Dr F, who was an expert psychiatrist appointed by the ICL to prepare a forensic report The Mother called three experts, her treating psychiatrist, Dr J, her forensic psychiatrist, Dr K, and her treating psychologist, Ms N.
The Medical Evidence
Dr F
Dr F opines that:[6]
The duration and nature of this mental state abnormality supports the view that the cause of the disorder of the form of thought formation is the mental illness known as Schizophrenia.
[6] Affidavit of Dr F filed on behalf of the Independent Children’s Lawyer on 30 October 2019, at Annexure A, page 6.
He expressed a view about the Mother’s prognosis:[7]
Prognosis
The prognosis is very guarded.
Ms Pinson has developed powerful belief systems which are antagonistic and blaming of The Father for her problems whilst at the same time, being positive in some of her comments about his good function as a father, and about wanting to reunite with him.
The prognosis is dependent on her access to and compliance with treatment for the psychiatric issues outlined above.
The prognosis should be reviewed at six monthly intervals.
[7] Ibid, at page 10.
Dr J
In a letter dated 9 December 2019, Dr J notes:[8]
Ms Pinson has no symptoms of Schizophrenia.
She does not have auditory hallucinations, she has no delusional mood, there is no distortion of thinking nor delusional thinking and there is no evidence of thought disorder.
I interpret from Dr F's report that he felt Ms Pinson did have disordered thinking, as she was overinclusive in her responses, and appeared circumstantial and could not be interrupted during the interview.
In my notes, I have recorded that I felt Ms Pinson may be suffering from an undiagnosed ADD. In my opinion, her intensity and overinclusiveness of thought and speech is more in keeping with an Anxiety Disorder and/or possible ADD. Ms Pinson does not have disordered thought processes inherent in the diagnosis of schizophrenia.
In summary, in my opinion Ms Pinson has been suffering from anxiety as a result of difficulties at her employment, trying to balance her finances with her quality time with her daughter X, and dealing with what appears to be an emotionally and financially abusive relationship with a narcissistic former partner.
Treatment will be to continue to see Ms Pinson for supportive psychotherapy. Considering the difficulties she has been having both at work and in her relationship and now more recently the Family Court, supportive psychotherapy is of more importance than trying to treat the probability of ADD which I have not explored further, and will once the other life events have settled down.
[8] Affidavit of Dr J filed on behalf of the Respondent on 8 June 2021, at Annexure 2, page 9.
In a letter dated 18 May 2020, Dr J confirms:[9]
Ms Pinson in my opinion, does not have schizophrenia as alleged by an independent medical assessment, and instead has a long history of ADD.
In the time I have consulted with her, I have now commenced on appropriate treatment for ADD, including medication and psychotherapy.
Ms Pinson is stable, her ADD is under control, and she generally feels better than she has most of her adult life.
Ms Pinson is not a danger to her child, X, and at no time is a risk.
In my opinion, Ms Pinson is capable of managing her daughter X as a custodial parent unsupervised.
[9] Ibid, at Annexure 3, page 11.
Dr J in his oral evidence confirmed he was seeing the Mother once per month from June 2017 until May 2020. Since May 2020, he has then only seen her on 12 January 2021.
Dr K
Dr K was engaged by the Mother to prepare a forensic report.
Dr K records:[10]
Ms Pinson is currently receiving Centrelink payments, and is pursuing a family court hearing to decide on the custody arrangements of her daughter X. I have prepared this report at her request to assist with these proceedings. I have not seen any material from her solicitor, or any work related documents. This report relies on interviews with Ms Pinson on 30/09/2020 07/10/2020 and 21/10/2020 at L Clinic, Suburb M, Queensland.
[10] Affidavit of Dr K filed on behalf of the respondent on 8 June 2021, at Annexure -1, page 6.
The diagnosis he provides is:[11]
Formulation and Diagnosis
My overall impression is that I would agree with Dr J's diagnosis that Ms Pinson meets the criteria for Generalised Anxiety Disorder, which was precipitated by Adjustment Disorder, and this condition has responded well to treatment with psychology. She is not currently taking any medication and I would make no recommendation for her to commence medication following my assessment.
Her symptoms of anxiety appear to have largely resolved from her initial presentation, and the degree of impairment that she describes as a consequence of her symptoms also appears to have decreased. Her overall impairment appears to be continuing to decrease as she responds to psychological treatment.
[11] Ibid, at page 11.
Ms N
Ms N is the Mother’s treating psychologist. It was her report, prepared on 5 July 2021, which the Mother’s Counsel relied on to support his Application that the Mother not be cross-examined at the trial.
The expert has been treating the Mother since 2017.
Ms N’s evidence in her report is:[12]
Ms Pinson’s conditions peaked in the past 18months and remained high since being involved in a long term custody battle with her ex-husband over property and custody issues.
Ms Pinson advises that she is currently required to give evidence in court regarding custody arrangements over her daughter X (sic) Pinson.
In my professional opinion, Ms Pinson is unfit for cross examination in the court setting at this time as any further pressure to recall issues of the past would only serve to re-traumatize and possibly cause relapse in her condition. I fear this type of interrogation would re-ignite those past symptoms, anxieties, and re-trigger the bullying and abuse sustained in the marriage. Her regular psychological treatment has focused upon her rebuilding her confidence and battling with physical, verbal, and psychological abuse of the past. Further it has served to ensure increased personal power, maintenance of good and best practice parenting together with creating a healthy work life balance for herself and her daughter X (sic).
It is my professional opinion, irrespective of her trauma symptoms and generalised anxiety disorder, I believe that Ms Pinson (sic) is capable of giving instruction to her solicitor regarding best care arrangements for her daughter X (sic) and does fully understand the nature of legal proceedings in which she has become involved.
It is also my professional opinion that given her commitment to self-improvement and counselling she is adequately capable of parenting her daughter X (sic). This involves her ability to manage the everyday situations and pressures of schooling, social and sports events. Further she is cognizant of the importance for X (sic) to maintain a healthy relationship with her natural father.
Treatment is ongoing to ensure her capacity to parent and cope with everyday life stressors remains high and positive.
[12] Letter of Ms N dated 5 July 2021, handed up on 6 July 2021 and made Exhibit 2 in these proceedings.
Ms N gave the following evidence when cross-examined by Counsel for the Father:
(…) So it’s your opinion, isn’t it, that Ms Pinson currently suffers from PTSD and a generalised anxiety disorder?---Correct.
And you say – you think the PTSD stems from abusive behaviour that she experienced during her marriage?---Correct.
What symptoms do you say that Ms Pinson currently displays that are consistent with her having a PTSD disorder?---Recurring – well, she gets triggered. Her anxiety heightens. Recurring thoughts of the past, reminders of being trapped and being hurt by her partner from the past. SO constantly feeling jittery, nervous, very tense. She has reported being easily startled and being reminded – there’s always reminders. She’s just triggered regularly. So she finds it very difficult to be at peace, and to be calm.
Thank you. What has Ms Pinson told you about her account of abuse that occurred in the marriage?---There was physical and verbal and psychological abuse.
Mr Dodd, Counsel for the Independent Children’s Lawyer, asked Ms N:
In terms of the diagnosis of PTSD, who made that diagnosis?---I made that diagnosis because of her recurrent triggers. She’s constantly triggered and feeling the same disassociation. Sometimes, she feels she’s very tense, and be very jittery, and she’s having – she’s getting triggered, and quite fearful that, you know, abuse can happen with anyone and any future partner as well.
And was that diagnosis you made when you first saw her in 2017?---No. I made that diagnosis this year.
The divergence of opinion of the experts makes it impossible for me to make a finding that the Mother suffers from a particular mental health illness.
I note the Mother was originally referred to Dr J and Ms N because of a work-related dispute.
The Assistant Director, Mr O, in a letter to the Mother dated 3 June 2019, records:[13]
Dear Ms Pinson,
I refer to my letter dated 15 April 2019, in which I found the allegation against you substantiated, namely:
Allegation: That since the start of 2015 you have failed to perform your duties to the standard expected of a public servant.
(…)
Accordingly, I have determined to impose the disciplinary action of termination of your employment effective immediately. You will receive four weeks’ pay in lieu of notice. Arrangements will now be made for any outstanding entitlements to be paid to you based on the termination date.
[13] Tender bundle of the ICL handed up on 6 July 2021 and made Exhibit 1 in these proceedings, at page 100.
This process is still ongoing. There were a significant number of complaints about the Mother’s role as a public servant.
The Employer P in a letter to the Mother dated 15 April 2019 summarises Dr J’s letter dated 22 March 2019 as follows:[14]
[14] Ibid, at pages 75-76.
In Dr J’s letter dated 22 March 2019, he states that:
-He has been your treating psychiatrist.
-You have had problems with anxiety and depression as a result of what appears to be a “witch hunt” by your colleagues of the department.
-You have given him a history of work and being particularly picked on, ostracised, and given duties far beyond your time considerations.
-From you (sic) description, it appears that you have been set up to fail.
-As you did “fail”, you then received a “show cause” for disciplinary action and have been refused a return to employment until “you accept the show cause”.
-You informed him that if you are “to accept the ‘show cause’ [you would] then be fired from employment (constructive dismissal?)”
-You are therefore in a situation where the department will not allow you back to work until “[you have] signed a show cause and if [you] sign the show cause, [the department] will fire [you].
-This of course causes extreme anxiety and depression.
-You only “want to return to work and be a public servant, a role [you are] dedicated to and has wished to continue in your career”.
-You are involving the union in your petition to return to work without any “show cause”.
-In his professional opinion, the show cause is defective and is effectively perpetuating your psychiatric disorder.
-He has stated on many occasions that the show cause should be dismissed on the grounds of mental illness, however, the department insists on this show cause, which perpetuates your psychiatric disorder, and effectively “sets you up to be fired from employment (constructive dismissal?) thereby causing further financial stress”.
It is clear from Dr J’s information that the Mother was facing significant mental health issues because of the difficulties she encountered in her dispute with the Employer P.
The Mother’s psychologist expressed an opinion to Mr Dodd under cross-examination that the Mother is presenting “better than she may have done previously”:
(…) I think you’ve indicated, you know, this year she’s been presenting better than she may have done previously. Would that be fair?---Yes, 100 percent, absolutely appropriate and fair.
Yes?---She’s getting better because she has been attending and she has support and understanding of the process of what has happened in her life, managing, you know, the breakup, her work, her child. All those aspects of life.
It is pleasing to hear the expert suggest that the Mother is presenting better than she had done previously. However, I am left with the situation where the Mother was so unwell she was not able to be cross-examined. I consider the Mother has a very serious mental illness. Her presentation in Court was of a very agitated woman, and she was unable to attend to the basic requirement that she be available for cross-examination.
DOMESTIC VIOLENCE
The Mother alleges she was subjected to serious domestic violence.
The Mother alleges there were incidents of verbal and emotional abuse. She also gives evidence that: [15]
[15] Affidavit of Ms Pinson filed on 10 June 2021, at paragraphs 59-60.
59. In or about May 2018 the father, after we had a disagreement grabbed my head and put his hand over my mouth to stop me from breathing saying words to the effect of:
“I hate you I’m going to kill you”
60. While pushing my head back on the pillow. I did not report this at the time because I feared reprisals and being victimised.
The records from the police, subpoenaed by the ICL, have the Mother making the following report on 11 May 2018:[16]
Q showed police a photograph of her face (attached) and alleged that sometime about a year ago, PINSON had put his hand over her mouth during an argument and her removing his hand caused redness to her face. Q could not provide detail of a date or time of this, stated she did not think she wanted to make a complaint, and when attempts were made to obtain further details Q continually went off track in relation to her employer setting her up to fail. Nil complaint forthcoming. Nil witnesses.
[16] Tender bundle of the ICL handed up on 6 July 2021 and made Exhibit 1 in these proceedings, at page 7.
The Mother’s evidence of domestic violence is:[17]
[17] Affidavit of Ms Pinson filed on 10 June 2021, at paragraphs 29-30.
Incident on 10 May 2016
29. On 10 May 2016, Mr Pinson and I had an argument and the Police filed an Application for a Protection Order against me.
30. It was clear to me that the Police Officer did not like me at all and leaned toward Mr Pinson and his version. I felt that he misunderstood what really happened and was otherwise not concerned with my version at all. In fact, I felt he was not concerned at all about my complaints about Mr Pinson’s bad behaviours towards me. The Officer did not investigate any of my claims about Mr Pinson’s domestic violence.
On 20 June 2016 the Mother filed an application for a Protection Order against the Father. It appears this application was dismissed on 5 October 2016. The Mother’s evidence is that the parties attended counselling and reconciled.
The subpoenaed records show the Mother attended at the Suburb R Police Station on four occasions in 2018 complaining of domestic violence by the Father.
On 11 May 2018 the note records the Mother’s concerns:[18]
RO reviewed all material including text messages provided by Q and RO unable to substantiate any DV. Q stated she did not wish for police to take any action other than to get her daughter back. Q advised police could not get involved in relation to custody matters.
(…)
[Supplementary Report] #40 (…)
Email received from DV Taskforce via Police link where Q has contacted 131444 in relation to a welfare check to be conducted on her child, who is currently residing with the childs (sic) father. The officer has made a thorough entry as a Street Check as there are NO GROUDS FOR DV ACTION in relation to what information Q presents. The officer does not believe that the child is at risk with the father as he appears a responsible and caring father.
Q has been offered AVENUES of assistance from police in respect to all lawfully administrating her life.
[18] Tender bundle of the ICL handed up on 6 July 2021 and made Exhibit 1 in these proceedings, at page 7.
On 25 May 2018 the note records the Mother’s concerns as follows:[19]
Current incident
Informant Ms Pinson attended Suburb R Station Counter to discuss her relationship with her ex husband Mr Pinson and their daughter [redacted] INF stated her ex husband had left the family home 14 weeks ago and that hshe (sic) did not believe he should have shared care of their child as he was the one that left. INF confirmed she is going through stress in relation to her workplace as she is currently in a show cause position after being off for a period of time on stress related leave. The INF stated she was not fearful of her ex husband but kept referring to the term ‘power and control’. When asked where she had got this term from she stated she had been given this by Legal Aid and DV support service. INF believed the (sic) her ex husband had displayed controlling behaviour as he had ended their relationship and now wanted to share custody of their daughter which she believed he was not entitled to. INF appears more concerned with the family court and civil matters than domestic violence. INF was concerned that her ex husband had filmed her whilst they were both at school pickup in a public place. This has not been done overtly or in a private setting. INF also concerned about financial matters so advice given regarding Centrelink and Child Support Financial referral offered and accepted by INF. Reporting officer does not believe Domestic Violence has occurred or that INF is in need of protection from future acts of Domestic Violence.
[19] Ibid, at page 9.
On 20 June 2018 the note records the Mother’s concerns as follows:[20]
[20] Ibid, at page 11.
The respondent in this matter is Ms Pinson (1975)
The aggrieved in this matter is Mr Pinson (1976)
The aggrieved and respondent have been in a relationship for approximately 20 years. They have one child together; [redacted]
There are currently no domestic violence orders or family law court orders in place.
The aggrieved and the respondent separated shortly after the child was born due to ongoing arguments.
Approximately 21:55 hrs on the 20th June 2018, the respondent has presented to the Suburb R Police station alleging that the aggrieved has used “Power and Control” to emotionally abuse her.
When asked by Police to provide evidence of this, the respondent provided several documents outlining withdrawals from a shared bank account, 3rd hand text messaged (sic) between the aggrieved and the respondents (sic) father and direct text messages between the respondent and aggrieved. Police determined that none of the provided examples exhibited any expression of power or control on the part of the aggrieved.
The respondent then stated that the aggrieved had not dropped their daughter off as agreed. The respondent sighted a custody schedule provided by the Region S mediation Centre. The respondent stated that mediation had since failed and as such there was no agreed custody arrangement.
Police informed the respondent that as the father of the child, the aggrieved was entitled to 50% custody of the child. The respondent has demanded that Police retrieve the child and bring her to the respondent.
When asked what outcome the respondent was seeking by coming to the Police, she stated that she wanted 100% custody of the child and wanted the aggrieved to live with her again. The respondent refused to acknowledge that the aggrieved no longer wished to live with the respondent.
Police have viewed no evidence of any instances of domestic violence in this instance.
On 4 July 2018 the note records the Mother’s concerns as follows:[21]
[21] Ibid, at page 13.
The Agg, Ms Pinson 1975 and the Respondent, Mr Pinson 1976, were married for 20 years and have a [redacted]
The relationship broke down 5 months ago resulting in the Respondent moving out.
At approximately 1500hrs on 04/07/2018 the Agg attended the counter at Suburb R Police Station and asked to speak to RO, who is the station DVLO.
DVLO took the Agg into a statement room and spoke at length with her. The Agg was extremely emotional. She stated that her she (sic) was being controlled and manipulated by the Respondent. She stated that she was also being controlled and manipulated at work by her supervisor. Agg stated that the Resp has been speaking to the Mental Health Acute Care team as he has concerns about her mental health. Agg stated that she had been taking anti depressants but had stopped taking them. The Agg stated she was upset that the Respondent didn’t support her when she was having problems at work while he was living at home and that it was his duty as a husband to support her but that was how he controlled her by not supporting her.
Agg stated that the Respondent didn’t deserve to have a child as he had left the family home. She stated that that was the way he was exerting power and control over her and that now he thought he had won.
Agg stated that the Respondent should come back home where he belongs. She stated that she has been researching a lot of things on the internet and that she had been sending the Respondent things that he should be aware of when in a relationship. RO sighted numerous messages to the Resp sent by the Agg. RO brought this to the Agg attention and she said that she was allowed to send the Resp as many messages as she wants because he doesn’t mind.
Agg was advised that the issues she had mentioned were not domestic violence and that it would be more beneficial to speak to a counsellor about these issues. Agg stated that she has had contact with the DVPC however, she wasn’t happy with the advice they gave her.
Agg then stated that the Resp was stalking her and she wanted to get a report number to take to the Family Law Court to prove that he was a bad husband. She stated that the Respondent did not deserve to see his child as he had left them. She stated that she had lived with the Respondent for 20 years and he shouldn’t have a child if he was going to leave.
Agg stated the stalking incident occurred when the Agg was participating in sports training at the beach. She stated that she left her [redacted] sitting on the sand while she was training in and out of the water. She stated that the child was sitting under the tower and that her coaches could see her. The Agg stated that she saw the Respondent videoing the child on the beach and the Agg in the water. Agg believes this was for the Resp to use in Family Law Court to say that the Agg wasn’t supervising the child properly at the beach. Agg then stated that a work colleague saw the Respondent driving around the car park at the front of the sports club. The Agg was advised that the Respondent’s behaviour did not constitute stalking. The Agg stated she wanted Police to get a warrant to go to the Respondent’s house to look on his phone for the footage. The Agg refused to accept that the Respondent’s behaviour was not stalking. The Agg requested to speak to the Shift Supervisor who then spoke to her at length.
RO went back into the room to speak to the Agg again to advise her to make a private application for a domestic violence order if she wanted as there was not enough evidence for a police application.
I have included the extensive notes from the police records in this matter because the Mother was not cross-examined in relation to allegations of domestic violence. Furthermore, the Father denies any domestic violence occurred during the relationship or after separation.
The police records do not disclose any incident of domestic violence other than the allegation of physical violence alleged by the Mother and the police record is inconsistent with the Mother’s sworn evidence in her affidavit.
I am not able to make a finding that there was any domestic violence during the relationship or after separation.
CRIMINAL HISTORY
The Father’s criminal history is recorded in the Queensland Court Outcomes as follows:[22]
[22] Ibid, at page 5.
Establishment/ Date
Suburb R Magistrates Court 24/05/2013
Offence
[CC] 339(1) Assaults occasioning bodily harm (on 11/05/2013) (…)
Order/ Comment
No conviction recorder
Recognisance: $750.00
Good behaviour period: 9MO
The Father gave evidence that the assault involved a neighbour. In cross-examination, the Father conceded his response was inappropriate. The response to his neighbour’s behaviour resulted in the record set out above.
I do not consider this a relevant issue because:
(1)It was a considerable time ago (2012); and
(2)The Father made an appropriate concession that his behaviour was not appropriate.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
In deciding whether to make a particular parenting order s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s 60CC(3), the “additional considerations”.
Primary Considerations
Turning firstly to the application of the primary considerations set out under ss 60CC(2) and (2A):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(…)
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Meaningful Relationship
I accept there is a benefit to this child having a meaningful relationship with both of her parents.
The risk of harm to this child in the Mother’s care was first raised by Dr F. This risk he described was the reason the child was placed in the Father’s care and the Mother was to spend supervised time with the child.
This situation continued from November 2019 until September 2020. In September 2020, I made Orders increasing the Mother’s time with the child on the condition it was in the presence of the maternal grandfather.
The time increased to four nights per fortnight. The grandparents were unable to be present with the Mother at all times. The Father was aware of this but allowed the Mother’s contact with the child to continue.
The Father supports alternate weekend time and time during the school holidays with the Mother. On that basis, I accept that the Mother’s mental health issues do not, at the moment, pose a risk to the child that would require her time to be supervised. I am satisfied this is so because the Father is agreeable to unsupervised time and he has been caring for the child since the Orders provided for extended time with the Mother. He does not have any concerns of risk for the child under the current arrangements.
The Mother’s mental health is a serious problem and I noted her presentation in the courtroom was that of a very agitated person.
It is not clear that the Mother’s mental health is such that she could manage the care of the child as a resident parent.
Unacceptable Risk
I accept the current arrangement for the child’s time with her Mother does not appear to pose an unacceptable risk to the child at the moment. Ms G discusses the risk of the Mother’s mental health to the child in her report. She records:[23]
12.108 An emotionally warm and supportive home environment with parents who support X to develop a positive relationship with the other parent is imperative to building X’s self-confidence and self-esteem, and providing her with an environment that is conducive for her to emotionally and physically thrive.
12.109 There are obvious problems with the provision of this foundation for X’s well-being when the parental landscape is characterised by somewhat unresolved mental health illness and high conflict.
12.110 The likelihood of a child being exposed to emotional or physical harm or neglect is higher when a child is parented by a parent suffering from significant mental health issues, particularly when symptomology is not monitored and managed by psychiatric professionals. Impaired parenting can place children at risk, however parents with mental health issues who acknowledge their health issues, seek appropriate professional assistance, follow referral advice and have appropriate safety plans in place can provide competent and safe parenting of their children (see Plass-Christi et al., 2018).
12.111 It is well documented that children of parents who have mental health diagnoses are typically more likely to be exposed to adult behaviours, abnormal emotional fluctuations, unpredictable behaviours and unhealthy coping strategies, which can lead to many negative consequences including educational and schooling problems, and the internalising and externalising of emotional conflict.
[23] Affidavit of Ms G filed on behalf of the Independent Children’s Lawyer on 26 March 2021, at paragraphs 12.108 – 12.111.
This evidence demonstrates the need for the Mother to ensure she continues to receive treatment from a psychiatrist and psychologist to mitigate the risks discussed by Ms G in her report in relation to the child.
I do not consider the child is at risk of being exposed to domestic violence in circumstances where I was not able to find that there were incidents of domestic violence either during the relationship or after it finished.
Additional Considerations
The Child’s Views
This consideration is set out in s 60CC(3)(a) as follows:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The child describes her Mother to the report writer as “Loving, Adventurous and Fair”.[24] X describes her Father as “Brave, Loving, Fair and Wise”.[25]
[24] Ibid, at paragraph 7.19.
[25] Ibid, at paragraph 7.18.
X also said she likes Ms B very much and she described: “that she has a sister, D, and that her sister was ‘zero’ years old and was beautiful”.[26]
[26] Ibid, at paragraph 7.08.
Child’s Relationship with Significant Persons
This consideration is set out in s.60CC(3)(b) as follows:
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
Ms G observed the child with her parents. Her observations are helpful, and are as follows[27]:
5.02 She entered the room and seemed very comfortable to be with her father and engage (sic) in drawing.
(…)
9.12 X responded calmly and quietly to her mother’s questions, she seemed more interested in the puppets. She did not have the opportunity to initiate conversation.
9.13 X was compliant with her mother’s requests and quietly engaged, mostly monosyllabically throughout the observation.
9.14 X responded calmly and in a matter-of-fact manner to all her mother’s questions. She did not appear perturbed by her mother’s ardent engagement during the interaction.
9.15 Ms Pinson remained calm yet intense throughout the observation with her gaze not wavering from X.
[27] Ibid, at paragraphs 5.02, 9.12-9.15.
Ms G further records:[28]
12.20 Her demeanour, throughout the time with the writer and in the writer's rooms, was generally serious and somewhat emotionally distant and disconnected, in what appeared to be a well-practised protective behaviour.
12.21 There was not a time when with the writer that X could be considered as happy, or in a playful mood, and in general she displayed a somewhat flat affect throughout the series of interviews.
12.22 The only time this affect was interrupted was when she was with her father, where she became more light hearted, engaged in some humour and demonstrated some energy.
12.23 When with her mother, X showed gentle delight at seeing her mother and after a welcome hug, followed her mother’s instructions regarding food and games. At the same time, X continued to respond with mostly monosyllabic responses and little eye contact. She behaved more like a younger child than a 9-year-old girl.
[28] Ibid, at paragraphs 12.20-12.23
The Capacity of the Parents
I consider, under this heading, the following paragraphs of s 60CC(3):
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
It seems that the child’s intellectual needs have been somewhat overlooked by these parents while they were engaged in the conflict this litigation and the Mother’s difficulties in her work environment have caused.
The Father is now actively assisting the child with the development of her intellectual capacity by taking her to a paediatrician and speech therapist, and working with her during school evenings to develop her skills.
The Mother’s capacity to provide for the child’s emotional needs is directly related to how well the Mother is able to manage her mental health. There is no evidence of an unacceptable risk of emotional harm to the child at the moment but Ms G outlines the risk in her report, recorded at paragraph 83 of this Judgment. The Mother’s capacity to provide for the child’s emotional and intellectual needs is a concern given her severe mental health issues, which are not yet definitively diagnosed.
The Effect of any Changes in the Child’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is a very important factor in this case. The Family Report Writer has emphasised the need for the child to be provided with stability. There have been some significant changes in her parenting arrangements since 2017.
This stability would be best achieved by leaving X in the Father’s care as the resident parent. This is the course recommended by the Family Report Writer.
Parental Responsibility
Under s 61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
In the present case, the level of conflict in the parents’ relationship does not support an Order for equal shared parental responsibility.
The fact that the Father will not even attend Sports with the child in case the Mother is present at the sports club is one of the many examples of the extreme conflict in this matter.
I consider the Father should have sole parental responsibility for long term decisions. The reason for this is the parents have a highly conflicted relationship that precludes an Order for equal shared parental responsibility. Furthermore, I am not satisfied that the Mother’s mental health (given her presentation in Court) would support her making joint decisions with the Father.
I do not, therefore, need to consider equal time or substantial and significant time.
However, the Mother seeks, in the alternative, an Order for equal time.
I do not consider it is in the child’s best interest to make that Order or an Order for substantial and significant time because:
(1)The level of conflict between the parties does not support that type of Order;
(2)The Mother’s mental health mitigates against her caring for the child for extended periods; and
(3)The child will benefit from stability and that is provided by continuing to live with the Father.
THE ORDERS
I intend to largely make the Orders sought by the ICL. There is no evidence to support limited holiday time with the Mother so I intend to make the Order sought by the ICL for equal time during holidays.
I will not order the extra night in the alternate week to give the child stability during the school week to assist her to catch up with her school work and speech therapy.
I intend to order the Father to enrol in a Parenting Orders Programme to ensure he understands how best to co-parent after separation.
I will put an injunction in place preventing the child from attending upon Ms N, the Mother’s treating psychologist. I am putting that injunction in place because the psychologist has been treating the child without the input of the Father nor his consent. He has sole parental responsibility for the child’s health so it is proper that he select any treating practitioners for the child.
The Orders also provide for the parties to release any reports and the Judgment to any treating professional the parents of the child or the child attend.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy. Associate:
Dated: 12 August 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Remedies
-
Costs
-
Appeal
-
Jurisdiction
0
0
0