Pritchard and Johnston
[2017] FamCA 1056
•19 December 2017
FAMILY COURT OF AUSTRALIA
| PRITCHARD & JOHNSTON | [2017] FamCA 1056 |
| FAMILY LAW – CHILDREN – With whom a child lives – Where father seeks orders for sole parental responsibility and for the child to live with him – Where father seeks orders for the child to spend only supervised time with the mother – Where father seeks for the mother’s time with the child to be conditional upon her being psychiatrically assessed and compliant with directions of her treating mental health professional – Where mother seeks equal shared parental responsibility, and for the child to live with the father and spend alternate weekends with her – Whether the mother poses an unacceptable risk of harm to the child – Where the mother poses a risk of emotional harm to the child arising from her mental health – Where risk can be adequately mitigated by supervision and conditions on her time with the child – Where child wishes to spend more time with the mother – Where parties’ relationship would not support equal shared parental responsibility – Where it is in the child’s best interests for the father to have sole parental responsibility – Where child to live with the father and spend supervised time with the mother each alternate weekend – Where mother’s time with the child is conditional upon her engaging in treatment for her mental health – Where orders made for various restraints on the mother, including restraining her from publishing on the internet any derogatory comments of the father or father’s household. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) ss 140 |
| Johnston & Pritchard [2011] FMCAfam 1082 Johnston & Pritchard [2013] FCCA 2418 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 N & S & The Separate Representative (1996) FLC 92-655 M v M (1988) 166 CLR 69 Harridge & Harridge [2010] FamCA 445 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 |
| APPLICANT: | Mr Pritchard |
| RESPONDENT: | Ms Johnston |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Butters |
| FILE NUMBER: | SYC | 4591 | of | 2008 |
| DATE DELIVERED: | 19 December 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 16, 17, 18 and 19 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies SC |
| SOLICITORS FOR THE APPLICANT: | Pearson Emerson Meyer Family Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Guterres |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | K D Holmes Solicitors |
Orders
All previous parenting orders made in relation to X born … 2006 (“the child”) except for order 2 of orders made by Judge Coker on 23 July 2014, are hereby discharged.
Parenting responsibility
Subject to order 3, the father shall have sole parental responsibility for all major long-term decisions for the child (including but not limited to the high school the child is to attend).
The father shall:
a.Notify the mother in writing via email of any proposed decision relating to the long-term care, welfare and development of the child including the reasons for the proposal, such notification to be given at least one month before a final decision is made, other than in the case of an emergency;
b.Take into consideration any views expressed by the mother (to be communicated in writing to an email address nominated by the father) about the proposed decision; and
c.Inform the mother of his decision in writing.
Live with
The child shall live with the father.
Time
The child shall spend time with the mother as agreed between the parties and failing agreement as follows:
a.During school term:
i.Each alternate weekend from after school Friday (or 3.00 pm on a non-school day) until 6.00pm on the following Sunday; and
ii.Each alternate Tuesday from after school (or 3.00 pm on a non-school day) until 7.30pm.
b.In the event the mother lives within a 10km radius of the child’s school, the child’s time with mother during school term shall be:
i.Each alternate weekend from after school Friday (or 3.00 pm on a non-school day) until before school the following Monday; and
ii.Each alternate Tuesday from after school (or 3.00 pm on a non-school day) until before school the following Wednesday.
c.During School Holiday periods at such times as may be agreed and failing agreement at times in accordance with order 5a.
d.From 2.00 pm on Christmas Day until 4.00 pm Boxing Day
e.From 9am until 5pm on Mother’s Day
f.On the child’s birthday for two hours if falling on a school day and four hours if falling on a non-school day.
The mother’s time with the child pursuant to these orders shall be supervised by Mr D or other responsible adult as agreed between the mother and father, in writing, and with the father not to unreasonably withhold his consent.
For the purposes of these orders, supervision shall mean that the supervisor is to remain substantially present during, and to monitor, the mother’s time with the child.
Changeovers shall take place either at the child’s school, if time is expressed to start or cease after of before school, or otherwise at a place nominated by the father.
The mother’s time with the child is conditional upon Mr D or any other supervisor providing to the Court, within 7 days of the making of these orders, or accepting the role of supervisor, a written undertaking that:
a.he will supervise the mother’s time with the child;
b.he will inform the father in the event he is unavailable to supervise the mother’s time;
c.he will be substantially present during periods the mother spends with the child and will monitor that time to ensure the child is not exposed to any risk of harm from the mother including by reason of any substance/alcohol abuse or arising from the mother’s mental health or the mother’s interactions with the child;
d.he will take necessary steps in the event that he considers the mother is exposing the child to any risk of harm including removing the child from the mother’s care;
e.he will inform the father in the event that he becomes concerned the mother may expose or has exposed the child to risk of harm and in particular he will inform the father if he becomes aware of any deterioration in the mother’s mental health, any hospitalisation of the mother, any alcohol abuse or any failure by the mother to comply with court orders.
The mother shall comply with all directions relating to the mother’s interactions with the child, of any person supervising her time with the child.
In the event that Mr D (or any other supervisor) is unable or unwilling to supervise the mother’s time or, pursuant to order 9e, Mr D or the other supervisor informs the father that he is concerned the mother may expose or has exposed the child to risk of harm then the father is at liberty to temporarily suspend the mother’s time until such time as Mr D or the other supervisor becomes available to resume supervision, or Mr D or the other supervisor advises the father that his concerns have abated.
Notwithstanding any other order, the father shall be at liberty to facilitate the child spending unsupervised time with the mother at the father’s discretion.
Notwithstanding any other order the father shall spend time with the child:
a.From 9am to 5pm Father’s Day; and
b.From 9am to 5pm on the father’s birthday.
Mother’s mental health treatment
The mother’s time with the child shall be conditional upon the mother engaging in treatment for her mental health and for this purpose the mother shall:
a.Continue to attend upon her psychiatrist, currently Dr S, and the local area health mental health team for such time and at such intervals as they deem necessary;
b.Comply with all recommendations made in relation to her treatment including: attending at all scheduled appointments, complying with prescribed medication, attending upon any other person, program or service as may be recommended.
In the event that Dr S is unable, unwilling or unavailable to continue to treat the mother, the mother shall:
a.inform the father in writing that she is no longer receiving treatment from Dr S, including the reasons the treatment has ceased;
b.obtain from her GP at the Suburb T Family Medical Practice a referral to a qualified psychiatrist nominated by the GP;
c.attend the first available appointment with the psychiatrist to whom she has been referred for treatment;
d.inform the father in writing of the contact details of the new psychiatrist.
Within 14 days of a written request from the father, the mother shall obtain and provide to the father a written report from her treating psychiatrist and such report is to address:
a.the dates of any consultation the mother has attended (including any consultations not attended);
b.the mother’s engagement and compliance with treatment;
c.an opinion on the status of the mother’s mental health including whether within the preceding 6 months there has been any deterioration/improvement in the mother’s mental health and whether the mother has been hospitalised for any mental health condition.
The father shall not make more than one such request for a report within any six month period and the father shall be responsible for the reasonable costs.
In the event the mother fails to obtain and provide to the father a report in accordance with these orders, the father shall be at liberty to suspend or reduce the time the mother is to spend with the child until such time as the report is received.
The ICL shall provide to the mother’s GP at the Suburb T Family Medical Centre and to Dr S a copy of these orders and the Court’s reasons for judgment and these orders shall authorise Dr S (and any person subsequently treating the mother) to forward the judgment and the orders to any other person who may also be providing the mother with treatment for any mental health condition.
The mother shall forthwith provide to and otherwise ensure that a copy for these orders and reasons for judgment are provided to any person who is providing the mother with treatment or her mental health.
Overseas travel
Pursuant to section 65Y(2) of the Act the father is permitted to travel overseas with the child on one occasion every two years for a period of up to six weeks.
For the purpose of any overseas travel pursuant to Order 21 the following conditions shall apply:
a.The father is restrained from travelling with the child to any country that is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, other than during periods of transit of no longer than 48 hours;
b.The father shall provide the mother 60 days’ written notice of proposed travel including dates and countries to be visited;
c.The father shall provide to the mother not less than 14 days before travel, an itinerary of travel including copy of return airline tickets and contact details whilst abroad; and
d.The mother’s time with the child is suspended during the period the child is overseas pursuant to these orders.
e.The father shall facilitate reasonable communication between the child and the mother, by telephone or Skype, whilst the child is overseas.
The father is authorised to apply to renew or obtain a passport for the child without the consent of the mother.
The father shall retain control of the child’s passport.
Restraints/injunctions
The mother is restrained by injunction from:
a.Approaching within 200 metres or entering upon the father’s place residence without the written permission of the father;
b.Approaching within 200 metres or entering upon the child’s school except as agreed with the father and otherwise permitted by the school;
c.Consuming alcohol whilst the child is in her care or within the preceding 24 hours prior to having care of the child;
d.Taking the child to any medical practitioners without the father’s knowledge and written consent except in the case of a medical emergency in which case the mother shall immediately inform the father of details of where the child is receiving treatment.
e.Publishing on Facebook, twitter, Myspace or any other social media website or internet generally any derogatory statements concerning the father and/or Ms P, and/or Y, and/or Z and within 24 hours of these orders the mother must remove any such posts;
f.Telephoning the child during school hours.
The father shall facilitate the child’s attendance at counselling with the E Service until such time as the E Service deems necessary and the parties shall follow the recommendations made by the E Service including with respect to the child’s engagement with COPMI.
The ICL shall provide to the child’s counsellor at the E Service a copy of the orders and reasons for judgment.
The party with the care of the child shall notify the other of any medical emergency, illness or injury suffered by the child that may warrant treatment by a third party.
Each party is restrained from denigrating the other in the presence of or within hearing of the child and from permitting the child to remain in the presence or hearing of a third party denigrating the other party.
Each party is restrained from discussing these proceedings with the child.
Each party shall provide keep the other party informed of any change in residential address, telephone number, and the mother shall in addition ensure the father is informed of contact details of Mr D.
Upon the making of these orders the father shall arrange for the child to attend upon the ICL at the first available appointment for the purposes of the ICL explaining to the child the nature and effect of these orders.
The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pritchard & Johnston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC4591/2008
| Mr Pritchard |
Applicant
And
| Ms Johnston |
Respondent
REASONS FOR JUDGMENT
introduction
For many of the eleven years of life of the child the subject of these proceedings (X born in 2006, hereafter “the child”) his parents have been litigating in relation to the appropriate parenting arrangements for him. Indeed notwithstanding that on 23 July 2014 Judge Coker made orders restraining Ms Johnston (“the mother”) from being able to commence further proceedings in relation to the child, for reasons which I will detail shortly, in December 2015 it was Mr Pritchard (“the father”) who commenced the present iteration of this litigation, thus enabling the mother to in fact further litigate. Moreover the parties have outstanding applications for AVO’s against each other, thus providing yet another fertile opportunity for the perpetuation of the conflict between them. Perhaps this judgment will quell their disputation, but if history is any guide, it probably will not.
As ultimately formulated, the father seeks orders that he have sole parental responsibility for the child, who would live with him and spend supervised time with the mother for about four and a half hours every second Friday afternoon, and for about the same period of time every Monday afternoon. He proposed that any school holiday time which the child spent with the mother should be supervised as agreed between the parties, and that there also be supervised time on special days. That said, the father indicated that he intended, subject to being satisfied that the child would be safe in the mother’s care, to flexibly permit the child to spend greater periods of time with the mother, although the maximum extent to which he would be prepared to agree was not really explored in evidence. However unusually, the father sought an order permitting him to unilaterally suspend the time that the child would spend with the mother under the orders, if he had concerns in relation to the child’s safety in spending time with the mother, which suspension would continue until such time as he was of the view that the mother no longer posed a risk to the child. Further, he sought to impose conditions precedent to the mother commencing to spend time with the child, and continuing to do so, namely that she be independently psychiatrically assessed, and thereafter follow all recommendations given to her by her treating mental health professional, including compliance with any recommended medication regime.
The father justified those orders on the basis of the risk which he asserted the mother poses to the child, by virtue of her psychiatric condition.
For her part, although at the commencement of the trial the mother sought orders for equal shared parental responsibility, and for the child to live week about between the parties’ households, by the conclusion of the hearing she had changed her position to seek the continuation of the final orders that were made on 12 October 2011 by Walker FM (as her Honour then was). In substance, those orders provided for equal shared parental responsibility, and for the child to primarily live with the father, but spend alternate weekends with the mother, together with every Monday evening. The mother did not suggest that such time be supervised, and in doing so, implicitly denied that she poses any risk of harm to the child by virtue of her mental health.
The Independent Children's Lawyer supported neither party’s position. Rather he sought orders that the father have sole parental responsibility for the child, who would live with him, but spend loosely supervised time with the mother each alternate weekend. In so doing, he sought to strike an appropriate balance between the risk which the mother allegedly poses to the child, and the benefits which the child would obtain from a meaningful relationship with her.
THE FACTS
The father
The father was born in 1968, and hence is presently 49 years of age.
Seemingly from an early age, the father has followed his interest in music, and worked in the music industry. He was 30 years of age when the parties commenced their relationship in January 1999.
The mother
The mother was born in 1970, and hence is presently 46 years of age. Her parents separated when she was six years of age and she remained living with her mother in New Zealand, until her mother became mentally ill, being diagnosed with bipolar disorder. At some point, probably when the mother was in her early teens, her mother tried to strangle her; this appears to have precipitated the mother suffering post-traumatic stress disorder, which was successfully treated with eye movement desensitisation re-programming, when the mother was 20 years of age.
The mother moved to Australia from New Zealand with her father when she was 14 years of age, and left home at 17 after a disagreement with him. It appears as though she also experienced physical violence at the hands of her father.
The mother worked in a variety of roles before, aged 28, she met the father and commenced a relationship with him.
The relationship
It appears as though early stages of the parties’ relationship were uneventful, with the father continuing in his pursuit of career in music, and the mother continuing in a range of employment, until she commenced her own business.
In 2005 the parties married. Then in 2006, the child was born. The mother believes that thereafter the relationship fell into difficulty, with the father being increasingly engaged in playing games on the internet.
Whatever be the cause, it is not in contention that the parties finally separated on 15 April 2008, when the child was approaching two years of age.
Post-separation
Initially the father left the former matrimonial home, and the parties were able to agree an arrangement under which they equally cared for the child. After consultation with a psychologist, that was reduced to the child spending six nights a fortnight with the father, although it appears as though shortly after that commenced, the mother unilaterally determined that it should again change, such that the child spent six nights each week with her. The father was not agreeable to this, and proceeded to keep the child with him for a period of about a week, during which time, on 7 August 2008, the mother commenced proceedings seeking the child’s return.
On 13 August 2008, consent interim orders were made, providing for equal shared parental responsibility for the child, and for him to live with the mother, but spend alternate weekend time, and some mid-week time, with the father.
At about this time the father met his current partner, Ms P, and they formed a relationship. They commenced to cohabit in February 2009, and later in 2009, their first child, Y, was born.
The parties continued to have negotiations in relation to variations to the care arrangements for the child, and the then extant litigation slowly progressed.
The father and Ms P’s second child, Z, was born in 2011.
In April 2011 the mother commenced her relationship with her current partner, Mr D.
Next, on various dates in 2011, the parties ran a hearing before then Federal Magistrate Walker, which resulted in orders being pronounced on 12 October 2011, for reasons given on that day: Johnston & Pritchard [2011] FMCAfam 1082. Under those orders the parties had equal shared parental responsibility for the child (with some exceptions) who was to live with the father and spend time with the mother on alternate weekends from after school on Friday and before school on Monday, together with Monday nights in the off week. Further, the child was to spend one half of school holidays with each parent, and there were provisions for special days.
A number of specific orders were also made in relation to the child’s attendance upon medical practitioners. Particularly order 7 provided that neither of the parents was to take the child to consult with any medical specialist without prior advice to the other.
The mother was plainly unhappy with that outcome. That saw her, on 11 December 2012, commence fresh proceedings seeking parenting orders, which proceedings were dismissed by Judge Altobelli on 13 February 2013 for reasons delivered orally on that day: Johnston & Pritchard [2013] FCCA 2418. The basis for his Honour’s dismissal of the mother’s application was the so-called rule in Rice & Asplund.
The father married Ms P in 2013.
Unsurprisingly, the mother continued to be unhappy in relation to the parenting arrangements for the child, which led to her again on 31 January 2014 commencing proceedings. On 23 July 2014 Judge Coker dismissed the mother’s application, again on Rice & Asplund grounds, and further restrained the mother from initiating further proceedings in relation to the child without leave of the court.
Notwithstanding that prohibition, things thereafter still did not proceed smoothly, with the mother, on occasion, insisting upon changeovers occurring at police stations, rather than as contemplated under the 2011 orders. Moreover the mother began to become focussed upon medical issues that the child was said to be presenting with.
Now is an appropriate time to record that the mother routinely uses a particularly hostile and aggressive tone when communicating with the father, whether by email, text or phone call. Such communications are liberally laced with accusations, swearing and threats. Moreover, the mother frequently sends multiple consecutive communications, often escalating in tone.
In view of the ongoing disputation between the parties in relation to parenting matters, on 4 November 2015 they participated in mediation, however were unable to resolve the matters in dispute between them. The following day the mother sent the father a somewhat menacing text message, in which she foreshadowed that she intended upon a course of action which would see the father lose his job, house, family and the like. The father reported that to police.
On 17 November 2015 the mother telephoned the father and complained about him letting the child walk home from the bus stop. She said that she believed that a van had been following people, and someone could grab the child. The father declined to discuss the matter with the mother, which obviously concerned her. She then contacted the child’s school, and advised that she intended to collect the child from school, notwithstanding that it was not a day when the child was due to spend time with her. The school contacted the father and advised him of the mother’s intentions, and the father and the Principal agreed to circumvent the mother taking the child, by the father taking the child early from school, which he did.
That evening the father and his wife went out to dinner. The three children remained at their home in the care of a babysitter. Whilst the father and Ms P were out, the mother attempted to communicate with the father, but he did not notice her emails and text messages for some time. In those messages the mother demonstrated an escalating concern in relation to the child and his safety; she was demanding to be reassured that he was safe.
Upon eventually noticing the mother’s communications, the father contacted the babysitter who was home looking after the children, and established that the child was safe. He believed that the babysitter would arrange for the child to call the mother. Whether or not that occurred is unclear, but what did occur is that while the father was still at dinner, police arrived and conducted a welfare check on the child. The father said that this was very traumatising for all three children, and his evidence was that the child was visibly upset that the police had been called to his house.
Later the mother sent the father an email in which she expressed her fear that the father may harm, or even kill, the child. There was no rational basis for that fear. This thereafter has remained the theme of some further communications from the mother.
The father became concerned that, given his belief that in the past the mother had projected her own situation onto him, that in fact it might be the mother who had thoughts of harming the child, as there was simply no basis for her to entertain that fear in relation to him. The father then instructed his solicitors to write to the mother advising that her time with the child should thereafter be supervised until she obtained appropriate treatment.
On 18 November 2015 the mother, still having concerns in relation to the child walking home from the bus stop, followed the child’s school bus, observed him alight from it, and be met by his father. She then emailed the father, advising him that she had followed the bus home, and said “I’m glad you decided to meet him today.” However she then continued “I’m worried you are one of those men who kill their children to hurt the mother…” There followed a number of other accusations against the father, including that he suffers from mental health issues.
On 20 November 2015, the child spoke with his mother, and at the conclusion of that conversation, told the father that the mother had told him that the father was kidnapping him. The father assured him that he was doing no such thing. Later that night, police again attended upon the father’s home to conduct a welfare check upon the child. In the course of that check, the police went in to the child’s bedroom and woke him up by shining a torch in his face, and enquired whether he was OK, to which he responded in the affirmative.
Pursuant to the regime imposed by the father pursuant to his solicitor’s letter, the mother thereafter spent supervised time with the child. At the same time the parties began to try and negotiate a regime of further orders, with limited success. During this period the mother’s time was supervised by her partner, Mr D. The mother sought to extend the time that she spent with the child beyond that which had been agreed, notwithstanding that it would not be supervised. The father refused.
In view of the parties’ impasse in relation to orders going forward, on 2 December 2015 the father commenced these proceedings and sought urgent interim parenting orders in relation to the child. A hearing ensued before Judge Scarlett on 9 December 2015, who on 11 December 2015 ordered a stay of some aspects of the 2011 orders, and ordered that the mother’s time thereafter be supervised, and restricted to each Monday after school until 7:30pm, and each Friday from after school until 4:00pm on the following Saturday. School holiday time was not specifically provided for, although special days were. Further orders were made restraining the mother from attempting to enter the child’s school or following him home from school. Additionally, the mother’s time with the child was conditioned upon her attending upon a psychiatrist, providing her or him with various materials, following all his or her directions, and authorising him or her to provide information to the father.
The mother was plainly very upset and distressed by the requirement for ongoing supervised time, and likely too, the dramatic restriction in the time which the child was to spend with her. She made several derogatory posts in relation to the father on social media, and continued to send the father hostile and offensive emails. Also it appears as though the mother began to consume considerable quantities of alcohol, and, on occasion, would show signs of intoxication when speaking with the father or leaving voicemail for him. Also the mother began to claim that she was being followed by a private investigator retained by the father.
On 15 February 2016 the proceedings were transferred from the Federal Circuit Court to the Family Court.
In June 2016 the Family Report writer, a psychiatrist, Dr G, conducted interviews with the parties and undertook observations of the child’s interaction with them. In the ensuing Family Report of 9 August 2016, he concluded that the mother was not suffering from any psychosis or disorder, although her conduct was unusual. That said, he identified that she had some personality traits, which were likely the cause of her strange behaviour. Likewise in relation to the father, he did not identify him as suffering from any disorder, although he opined that the father “may have a narcissistic focus and lack of empathy.”
On 16 October 2016 there was a violent episode at the mother’s home between her and the tenant of a granny flat there. In consequence the mother was charged with assault.
In November 2016, the mother was in the throes of marketing her home for sale. As a part of that strategy, she determined that she would hire a Porsche motor vehicle, perhaps to project to respective purchasers that she was more affluent than in fact she was. Apparently the child likes sports cars. The mother discussed with him, it seems, the prospect of driving with her in the sports car, and advised the father of her intentions. He objected strongly. The mother’s communications in relation to this proposal border on the bizarre. It is likely that, at times, she was intoxicated when writing them. The father was understandably troubled about the prospect of the child travelling in the Porsche with the mother, particularly given her avowed intentions to drive it in an exhilarating way.
It seems plain that at this point in time, the mother was drinking heavily. She has been variously recorded as drinking between one to two bottles of wine a day, or two bottles of wine per day.
Notwithstanding the father’s express refusal, in fact on 12 November 2016 the mother did take the child for a drive in the Porsche. The father points to this as an instance where the supervision regime substantially failed, in that only the mother and child were in the car, although Mr D was following in another vehicle.
On 20 December 2016 the mother attended the emergency department of Suburb F Hospital. Her evidence is that she attended because she identified that she was extremely stressed and mentally unwell. That much seems plain. What is not clear is whether she obtained any treatment from the hospital. She says that she waited for something in the order of 10 hours without being attended to. On the other hand, hospital records in evidence indicate that she was at least assessed, and diagnosed as manic with a risk of suicide. There is a further suggestion that she was “sectioned,” which counsel agreed meant that she was thereafter no longer voluntarily at the hospital. Whatever be the case, it appears as though the mother did in fact leave the hospital without opposition, and without having received any substantial treatment.
The mother continued thereafter to demonstrate concerning behaviours, particularly in relation to the father. She began to leave a large number of voicemail messages for him, and also on the child’s phone. The volume of them, and their content, caused the father to block the mother’s phone number on 28 January 2017. That then saw the mother commence to communicate with the father’s wife. This distressed his wife, who does not appear to have enjoyed good relations with the mother in the past.
The mother’s behaviour caused the father to seek police assistance to obtain an interim AVO against her, and that was granted on 8 February 2017. After that hearing, the mother posted a Facebook message, which permitted the father to see her earlier Facebook posts (seemingly in the past year he had been blocked). He became aware that she had been regularly posting abusive comments about him. His solicitors wrote to the mother asking that the denigratory posts be deleted.
The mother’s mental health deteriorated. On 27 February 2017 the mother voluntarily admitted herself into hospital. She believed that the reason for her hospitalisation related to physical symptoms, and reported that she was suffering from Parkinson’s-like symptoms, comprising blurred vision, slurred speech, high blood pressure and having some balance and mobility issues. However it appears as though the hospital regarded her as essentially suffering from mental ill health, and noted that she was having persecutory delusions in relation to the father, and outlaw motor cycle groups. The following day she was transferred to the Suburb O Hospital Mental Health Unit as an involuntary patient. She was subsequently discharged on 8 March 2017, however it is apparent that her psychotic symptoms continued.
After she was discharged, the mother returned to her habit of leaving voicemail for the father, both on his phone and on the child’s phone. Those she left on the child’s phone appear to have been, at least in her mind, really directed to the father, who she believed was intercepting the child’s messages from her. It transpired that she was correct, in that the father was intercepting most, if not all, of those messages, so as to protect the child from them. Those messages were accusatory of the father, and sought to explain her absence from the child’s life as being the father’s fault.
The mother’s level of continued psychotic symptoms was noted by her general medical practitioner, who on 17 March 2017 wrote to her treating psychiatrist, Dr S, detailing that the mother “remains very unwell with persistent delusions and paranoia and pressure of speech.”
On 20 March 2017 the mother again voluntarily admitted herself to hospital, although again believing that the primary problem with her was physical, rather than mental. It appears as though her continued hospitalisation thereafter was involuntary. On 21 March 2017 the hospital records note that the mother was in a highly agitated state, and posed a potential threat to others in the hospital. The hospital was also suspicious that the mother was non-compliant with her medication.
On 22 March 2017 the father was advised by Mr D that the mother had again been hospitalised.
The mother remained in hospital until 31 April 2017, when she was given leave to return home, and was ultimately discharged on 3 May 2017. Notwithstanding her discharge and medication, the mother continued to demonstrate some paranoid delusions, particularly in relation to the prevalence of “ice addicts.” Indeed she remained of that view in the trial before me.
Communication between the parties was still fraught.
On 17 August 2017 the mother attended upon her general medical practitioner, seeking a certificate for the purposes of obtaining a disability support pension from Centrelink. The doctor certified that she was disabled by virtue of suffering from bipolar affective disorder, which was a permanent condition, and likely to affect the mother’s capacity to work for more than 24 months into the future. However the certificate itself only spanned from 9 August 2017 until 8 September 2017. The mother says that it was the temporal limitation of the certificate which caused her to throw it away, without reading it, and not the fact that in it she had been diagnosed as being bipolar. Indeed she even denies that her general medical practitioner had so diagnosed her. I have great difficulty in accepting that evidence, because the most likely way that the mother knew that the certificate only covered one month, was by reading it.
Current situation
As at the time of trial before me, the father remained living with his wife, their two children, and the child the subject of these proceedings, in a four bedroom home in Suburb B in Sydney. He continues to be engaged in the music industry, although he works extensively from home.
For her part, although at the conclusion of the trial the mother remained living in her home at Suburb C, during the course of the trial she signed a contract for its sale. It is her intention to obtain rental accommodation, once the sale settles, in the Suburb H area.
Although the mother remains in a relationship with Mr D, they do not cohabit, and have not done so for approaching two years. Mr D lives in a home at Suburb J, together with Mr Q, his 18 year old son to a previous relationship.
The mother’s evidence was that she and Mr D will again cohabit at the home at Suburb H, but Mr D was a little more ambivalent, saying that the matter was not settled. One of the attractions of his Suburb J property is its proximity to his employment which requires him to start work at 3:00am in the morning.
Therefore it appears as though the mother presently lives alone, although it may be that Mr D spends some overnights with her. She remains in receipt of a disability pension as her sole source of income.
The child has now completed grade 6, and next year will move to high school. One of the matters in dispute between the parties is which school he should attend. He would appear to be doing reasonably well at school, and has a number of friends there.
THE ISSUES
With the assistance of the parties, during the course of the trial I identified the following as the issues which the litigation gives rise to, in the sense that their determination is likely to substantially inform their outcome:
1.What is the nature of the relationship between each parent and child.
2.What risk, if any, does each parent/parent’s household pose to the child and what means are available to mitigate such risk.
3.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
4.Would the father facilitate a meaningful relationship between the child and the mother.
5.Does each parent have the capacity to provide for the emotional, educational and developmental needs of the child.
6.What would be the likely effect on the child of each party’s proposal.
7.What weight should be given to the child’s wishes.
8.Could the parties’ relationship and communication adequately enable equal shared parental responsibility and/or a shared care arrangement.
Once I have considered the relevant statutory provisions and legal principles, but in an advance of a traverse of any residual relevant s 60CC considerations, I will discuss those issues and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best 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 sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[1]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father in this case that the mother presents a risk of physical and emotional harm to the child are of real gravity.
Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. Based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND CHILD
It was conceded by the father that the child enjoys a good relationship with the mother, and the mother made a similar concession in relation to the father. That accorded with the opinion of Dr G, the psychiatrist who prepared the Family Report in this matter. In his oral evidence he said that he had no criticism of either party’s relationship with the child, in that the child had a meaningful relationship with both, from which he derives support and nurture.
I accept that evidence.
RISK POSED BY EACH PARENTS’ HOUSEHOLD AND MEANS TO MITIGATE IT.
Overview
This was the principal matter in contention in this case. The father contends that the mother poses a risk of both physical and emotional harm to the child, by virtue of her mental health issues, her excessive consumption of alcohol, and her belief that the father and his household are bad for the child. The latter two risks, of course, are likely to significantly overlap with the mother’s mental health issues, in that the mother’s alcohol abuse and paranoid delusional views are likely related to her mental health issues.
The father says that, but for the conditions which he seeks to impose upon the mother’s time with the child, the risks which she poses would otherwise be unacceptable.
For her part, the mother contends that the father’s household is not a healthy one, in that she says the father has a narcissistic personality disorder, which has seen him maliciously and deliberately create problems for the mother, and then use them against her. Further, she says that the father and his wife argue, and his wife is prone to acting out violently. That said, the mother ultimately proposed that the child should live predominantly with the father, and therefore it appears as though she says that such risks as the father’s household may pose are not unacceptable.
The mother
The father says that the mother poses a risk of physical and emotional harm to the child. At the heart of that risk lies the mother’s mental health. Although in his Family Report dated 9 August 2016, Dr G had noted (at [129]) previous diagnoses in relation to the mother, he did not make a formal psychiatric diagnosis of the mother other than (it seems) that she suffered from anxiety consequent upon developmental trauma. However in his oral evidence he dramatically departed from that view. Whilst still not favouring any particular formal diagnosis, he noted that consequent upon her hospitalisations this year, various diagnoses, including bipolar disorder type one, or episodic psychosis, could be applied to her. He was not troubled about the proper labelling, as much as the way in which the mother’s psychosis – whatever be its roots – demonstrated itself. Specifically he noted that it was episodic in nature, and appears to be influenced by the mother being exposed to alcohol and/or psycho social stresses, which precipitate a deterioration in her mental health. He particularly noted that her paranoid delusions were consistent with a psychotic disorder, which saw her have a loss of reality testing.
He emphasised that the mother’s disorder had both a psychotic and mood component. He noted that she was presently prescribed anti-psychotic medications, which were intended to address both the psychotic aspect of her condition, and her mood as well. He indicated that the mother would likely continue to require anti-psychotic medication, which is ordinarily orally administered by the patient themselves. That means compliance with the medication regime, which is known to have side effects, including weight gain, is dependent upon the patient alone. The side effects can motivate the patient to cease taking the medication so as to avoid them.
He explained that the difficulty with voluntary compliance is that unless the patient is a risk to themselves or others, they cannot be compelled to take the medication. He further emphasised that the nature of the mother’s psychotic condition of itself meant that she would have difficulty having appropriate insight into her condition, because it is associated with impaired reality testing. So, for instance, he was not surprised that the mother does not even now accept that she has a psychosis.
He said that it would be difficult to predict the mother’s mental state into the future, but he was particularly troubled if she continued to use alcohol (or marijuana, although that was not a live issue in the trial). He was adamant that the use of alcohol raised the risk which the mother poses, as indeed did her exposure to stress. He said that she was prone to decompensation at times of great stress, although he conceded that the mother did not, in the trial before me – which would inevitably be greatly stressful – appear to be decompensating. Nonetheless he said that whilst the purpose of the medication was to minimise the risk of a further “breakthrough” of psychotic behaviour, he could not rule that out. He emphasised that medication alone cannot prevent further breakthrough episodes, but rather the mother would need to engage with a team of mental health experts to monitor and manage her symptoms over time. He emphasised that requires them being provided with accurate information by the mother, who he opined had, in the past, underreported her symptoms, including to himself.
Further, he said that the mother only posed a risk of harm to the child during times when she was decompensating or experiencing a breakthrough, but the episodic nature of her condition means that the prospect of a further decompensation or breakthrough is live, and cannot be excluded, notwithstanding her medication.
Whilst accepting that, when experiencing a florid episode, there was the prospect that the mother could harm the child, even fatally, he thought the chance of that was extremely low.
The father however sought to argue that the risk of physical harm nonetheless remained real. He pointed particularly to the mother’s significant disinhibition when experiencing a psychotic episode, her past reference to suicidal ideation, the hospital noting her of having been a potential danger to others during a period of hospitalisation, and the prospect for the mother’s unpredictable response to a psychotic episode, having the potential to see her, perhaps inadvertently, harm the child or herself.
I shall consider the overseas travel component in a moment, however before I do that, I need to address whether or not the mother’s proposal of one half of school holidays of unsupervised time is in the child’s best interests. I am not satisfied that it is, because it would expose the child to an unacceptable level of risk. The reality is that the mother’s time with the child does need to be monitored, albeit not strictly supervised. Particularly her history of alcohol abuse – a recent history, which appears to have precipitated significant adverse response in her – is of real concern. Further, in the event that she is suffering stress, as inevitably she shall from time to time, it is likewise important that her behaviour be monitored. It is simply insufficient to have only her mental health monitored by Mr D; her behaviour needs to be monitored as well, albeit in a relatively loose fashion.
It is simply not possible for Mr D to monitor the mother’s time with the child in that way for one half of school holidays, or anything approaching that. He presently does not cohabit with the mother, and was not prepared to concede that there was an agreement – or even a settled intention – to do so in the future. Moreover, his hours of work would mean he would be absent for most week day mornings. Given that it is likely that the mother’s symptoms will fluctuate, and given that it is impossible to confidently predict that there will be no further “breakthrough” in relation to her symptoms, her proposal is simply too fraught with risk.
I am satisfied that the Independent Children's Lawyer’s proposal is appropriate. For the reasons that I am satisfied that the father’s proposal is not in the child’s best interests, during school terms, I am likewise satisfied that it is not in the child’s best interests for school holiday periods.
There will therefore be orders that the child live with the father, and spend time with the mother in terms substantially as sought by the Independent Children's Lawyer.
OTHER ORDERS
Overview
There are a raft of other matters in dispute between the parties. I will deal with those sequentially.
Schooling
The father and mother do not agree as to the high school which the child should attend next year. I am satisfied that the father should be able to choose the child’s school in accordance with, and in the exercise of, his sole parental responsibility for the child. I decline to make any specific order identifying the school, as there may be a variety of reasons as to why the child’s school may need to change in the future.
Overseas travel by child
The mother asserts that the father is a flight risk with the child, and hence should not be permitted to travel to any non-Hague Convention country, and further should be required to deposit $30,000.00 to be forfeit to her in the event he does not return the child to Australia. Those funds were said by the mother to be based upon an estimate that she had been given as to the likely costs of bringing proceedings to have the child returned pursuant to the Hague Convention.
The father sought that he be permitted to travel overseas for up to six weeks every year with the child. He did not delineate between Convention and non-Convention countries.
The Independent Children's Lawyer proposed that the father should be able to travel for up to six weeks every two years, and proposed that the father be restrained from travelling to non-Convention countries except in transit.
The father’s wife is of European heritage. She has family still living there. In the past, she and her two daughters have travelled to Europe without the child, given the prohibition which the 2011 orders made on overseas travel. Inevitably, one of the possibilities in terms of flight paths, is via the Middle East, and indeed, in the past, the father, his wife and the two daughters have stopped over there for a couple of days to break the journey. That is quite understandable. However it is likely that the countries in which they may stop over are not signatories to the Hague Convention.
The mother says that the father is a flight risk because he would be perfectly happy to remove the mother from the child’s life, and the nature of his business is such that he could conduct it anywhere in the world, and indeed may do better if he was based in other parts of the world.
Unfortunately the mother confuses ability with desire. True it is that the father may be able to sustain living overseas, but he has never done so in the past, and there is no reason to think he would now wish to. He has lived for all of his life (so far as I understand) in Sydney. I am not satisfied that the father presents any risk of flight. I reject the mother’s argument that he would be perfectly happy for the mother to be removed from the child’s life. His behaviour to date has far from demonstrated that, in fact quite the contrary. I am well satisfied that he understands that the child wishes to have a relationship with the mother, and from which he derives real benefit.
As to whether the father should be prohibited from travelling to non-Hague Convention countries, his proposed orders were cast in a way which would enable him to only transit through non-Hague countries. I am satisfied that is appropriate, in that it may provide some salve to the mother’s concerns.
Restraints / injunctions
The first restraint which the father and Independent Children's Lawyer seeks is a restraint on the mother approaching within 200 metres, or entering upon, the father’s residence. The mother was prepared to submit to such an order, but sought a reciprocal order against the father in relation to herself.
I am satisfied that the mother should be restrained from approaching within 200 metres of or entering upon the father’s place of residence without his written permission, because in the past, when the mother has attended, inevitably there has been some sort of a scene. Under the orders which I propose to make, there is no reason for the mother to approach the father’s home.
I am not satisfied that there should be any restraint upon the father as sought by the mother. There is no basis in the evidence to suggest that the father has ever sought to approach the mother’s home, or that he is desirous of doing so.
The next restraint was in relation to the mother approaching or attending the child’s school, except with the agreement of the father. The justification for this order lies in, firstly, the prospect that the mother may use any such opportunity to, in effect, spend further time with the child, and further, that she may use that opportunity to denigrate the father, as she has done on numerous occasions on her social media posts. The consequence of such an order would be that the mother’s involvement in the child’s education would therefore be significantly impeded.
Unfortunately the mother’s behaviour in the past, likely informs her future conduct. She holds a highly negative view of the father. She appears to be willing to promulgate that view to others, and I can discern no reason why she would be prepared to do so on social media posts, but not be prepared to do so face-to-face with the child’s teachers, or the parents of other children at the school.
However the real difficulty in an order permitting the mother to attend the school would be that, if she were to again be suffering breakthrough symptoms, or if she were to cease medication, or if she were to again abuse alcohol, it is practically impossible to fashion any set of orders which would operate so as to suspend her ability to visit the school during such times. It could not possibly be in the child’s best interests to have his peers see his mother in a non-medicated or drunken state. Such would likely be high humiliating and degrading for him.
Therefore, notwithstanding the fact that it impedes the mother’s involvement in the child’s education, I am nonetheless satisfied that it is in the child’s best interests for there to be the restraint as sought by the father and Independent Children's Lawyer.
Restraints on alcohol
It is plain that alcohol has been a major issue for the mother, even in the last twelve months. She should be restrained from consuming alcohol whilst the child is in her care, or 24 hours prior to having the child come into her care. In the witness box, the mother said she was prepared to submit to such an order, but I would have conditioned her time with the children in that way, even if that concession had not been forthcoming.
Medical attendances
The mother has, in the past, been unduly preoccupied with alleged ill health of the child, and has taken him to medical practitioners, and even a paediatrician, without the father’s knowledge. There must be a restraint on her doing so, except in the case of a medical emergency. The father’s exercise of sole parental responsibility should not be able to be undermined by the mother seeking alternative diagnoses or treatments for the child. Further, in the past the mother has used medical issues relating to the child as a pretext for further hostility with the father. This appears to be part of her preoccupation that the father’s household presents a risk of harm to the child, including in this respect, by him not properly attending to the child’s medical needs. That concern is without appropriate foundation, and is likely a further symptom of the mother’s mental ill health.
Restraints on denigration
The mother has posted a number of social media messages in relation to the father, that are highly denigratory of him. She even went so far as to suggest that people may care to attend his residence, and gave out the address. She has publicly wished that he would die. Those sorts of messages must be, firstly, removed within 24 hours of these orders, and secondly, not posted again. I am satisfied that there should be a general non-denigration order as well.
Telephoning child during school hours
In the past the mother has telephoned the child whilst he was at school. There is no reason for her to do so. She should be restrained from doing so in the future.
Child’s counselling
The child presently attends counselling with a program to minimise and deal with his anxiety. The father proposes that he should facilitate the continued attendance at that program. I am satisfied that is in the child’s best interests. I am further satisfied that these reasons, and the orders which I will pronounce, should also be made available to that program.
Other orders
Otherwise I am satisfied that the ancillary orders which the Independent Children's Lawyer proposes are in the child’s best interests, and will make them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 December 2017.
Associate:
Date: 19 December 2017
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