Pullman and Pullman

[2017] FamCA 1057

FAMILY COURT OF AUSTRALIA

PULLMAN & PULLMAN [2017] FamCA 1057

FAMILY LAW – CHILDREN – With whom a child lives – Interim  – Where previous consent orders in place for child to live with mother and spend alternate weekend time with father – Where child has remained in father’s care since November 2017 – Where father seeks suspension of consent orders – Where father seeks sole parental responsibility and for child to live with him and spend only supervised time with mother – Where mother seeks a return of the child and for a continuation of previous consent orders – Where mother advised court she intended to move to Sydney – Where mother did not seek an interim relocation order with child – Where mother’s imminent move to Sydney renders her orders sought impossible – Where mother opposed any supervised time with child – Where child’s mental health at risk if she was to return to the mother – Where it is in the best interests for the child to live with father – Where father to have sole parental responsibility in the interim – Where child to have communication with mother – Appointment of an Independent Children’s Lawyer – Family report and psychiatric assessment to be prepared.        

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Goode & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100

APPLICANT: Mr Pullman

RESPONDENT: Ms Pullman

FILE NUMBER: CSC 391 of 2012

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 5 December 2017

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Millyard Family Lawyers

THE RESPONDENT: In person

Orders

1. Paragraphs 1, 2, 4, 5, 6, 6(b), 7, 8, 9 and 10 of the Orders of 28 August 2013 be stayed.

2. That B born … 2004 (“the child”), live with the father and he have sole parental responsibility for her.

3. That the mother be permitted to communicate with the child each Sunday and Wednesday by Skype or telephone between 6:00pm and 6:30pm, with the father being permitted to supervise such calls, and terminate a call if he believes that it has become inappropriate.

4. The mother be prohibited from removing the child from the father’s care or any school, counsellor or other organisation attend by the child from time to time.

5. That the child continue attending “C Group” for as long as is recommended by that organisation.

6. That the father arrange for the child to attend upon a child psychiatrist for the purpose of assessing her mental health and receiving such treatment as is recommended by that psychiatrist.

7. That the father advise the mother and keep the mother advised of the child’s treating health professionals.

8. That the mother be restrained from contacting the staff of “C Group,” D School or any other counsellor treating the child from time to time.

9. That an Independent Children's Lawyer be appointed and Legal Aid Queensland be requested to arrange such representation.

10. That the Independent Children's Lawyer organise for the preparation of a Family Report by a psychologist and each of the parties are directed to comply with all reasonable requests of the Independent Children's Lawyer to attend and participate on the dates and times as requested in order for the preparation of the Family Report to occur.

11. That the Independent Children's Lawyer organise for a psychiatric assessment of the parent parties and for the preparation of a report in this regard and each of the parties are directed to comply with all reasonable requests of the Independent Children's Lawyer to attend and participate on the dates and times as requested in order for the preparation of the psychiatric assessment report.

12. That otherwise the parties’ applications for interim orders be dismissed. 

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 Pullman & Pullman 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 CAIRNS

FILE NUMBER: CSC391/2012

Mr Pullman

Applicant

And

Ms Pullman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 3 September 2013, Judge Henderson made final parenting orders in relation to the parties’ child, B, born in 2004, and hence presently 13 years of age (“the child”).  Under those orders, Ms Pullman (“the mother”) had sole parental responsibility for the child, who would live with her, but spend alternate weekend time, and half of school holidays, with Mr Pullman (“the father”), together with time on special days.  However that all changed on 3 November 2017, when the father collected the child for his usual weekend time with her, as the child did not return to the mother’s care thereafter.  It seems as though since then, the mother has neither seen, nor spoken to, the child.

2. By then, the father had already commenced these proceedings by Application filed 1 November 2017, initially seeking that the interim orders which he sought therein be heard and determined, at least in the first instance, ex parte.  In that application, he sought the suspension of relevant orders of Judge Henderson, and that in their place, there be an order that until further order, he have sole parental responsibility for the child, who should live with him, and spend only supervised time with the mother.

3. However somehow or other the mother got wind of the proposed ex parte application, and in fact appeared at the return date.  By then she had filed a Response to Initiating Application, and in due course filed an Amended Response.  By the interim orders therein, she sought a recovery order for the child, who would return to live with her and revert to spending time with the father. On Tuesday 5 December 2017, I heard the parties’ competing applications, and reserved my decision.  This is that decision and the reasons for it.

BACKGROUND FACTS

1. The mother was born in 1966, and hence is presently 51 years of age.  It appears as though her most recent employment was in 2005.  She is presently studying an online course in social work.

2. The father was born in 1966, and hence is presently also 51 years of age.  He is a manager by occupation, and remains so employed.

3. In 1991 the parties commenced to live together, married in 1998, and to the marriage the child was born in 2004.  However the parties’ relationship failed shortly after the child’s birth, and litigation ensued in relation to her.  An eight day trial in front of Carmody J concluded in December 2005 with consent orders.  A central issue in that litigation was the mother’s mental health.  The orders of Carmody J, insofar as they dealt with parenting matters, provided for equal shared parental responsibility for the child, who would live with the mother, but spend progressively increasing time with the father, culminating in alternative weekends and some holiday time with the father, together with special days.  Those orders contemplated that the mother would continue to engage with her then treating psychiatrist, Dr E.  However she ceased continuing to see him in December 2008.

4. In June 2012, the father commenced further proceedings in relation to the child, which culminated in the orders of Judge Henderson previously discussed.  Additional relevant orders required the child to continue attendance upon a specified psychologist, and for the mother to continue treatment with a specified psychologist as well, until that practitioner recommended that her treatment cease.  At least initially, both of those matters occurred, although it seems that the mother’s counselling was short-lived.  Then in March 2014, the mother also terminated the child’s attendance upon the counsellor, which precipitated a letter being written by the counsellor to the mother, in which he expressed strong views that the child required continued therapy.

5. Perhaps unsurprisingly, thereafter the child has demonstrated worsening mental health.  However it has been the father who has been, seemingly behind the mother’s back, arranging for the child to receive some assistance in relation to that.  Particularly, on 24 June 2017, a general medical practitioner whom the father had taken the child to, referred her to a counselling organisation called C Group, noting that the child “is suffering from anxiety and depression and has done for a couple of years.”  In a letter of 24 October 2017 to the GP, the C Group counsellor reported, amongst other things:

   .. I have now seen [the child] on four occasions and we have been working on her symptoms of both depression and anxiety.  Fortunately there appears to have been a slight lift in [the child’s] more concerning depressive features, however this has been paired with an acute rise in anxiety.

   [The child] currently feels uncomfortable in most situations.  She has withdrawn from most public outings (refusing to go to any public place where she may see someone from school) and spends the majority of her time on the internet with headphones in.  [The child] reports this is how she “copes” with living at her mother’s, and now finds this the most comfortable place to be as she does not communicate with her mother when in this state.

   This has placed pressures on her relationships at her father’s house as there is the expectation that [the child] will engage even minimally.  Fortunately this appears to be resolving this communication improves with her father and step-mother.

   …

   [The child’s] levels of anxiety remain severe, and her current depressive symptoms, while slightly improved still place her in the severe range.  Her self-worth is extremely low, however there has been a slight improvement in her hopelessness. 

6. On 4 November 2017, a general practitioner referred the child to a psychiatrist, Dr F.  The referral letter included the following:

   On talking to [the child] today, she says she wants to see somebody for the treatment of her mental health issues. As [the C Group psychologist] says, [the child] has requested treatment in the past and this has been denied by the mother.

7. When the applications first came before me, I referred the parties for an urgent Child Inclusive Conference with a Family Consultant.  Interviews were conducted on 17 November 2017.  By then, of course, the child had been living with the father for two weeks.  The child told the consultant a number of matters which were recorded by her as follows:

   [The child] experiences school as a stressful environment because she reports suffering from social anxiety.  This anxiety began in high school and it makes her critically conscious of what others think about her.  She is unable to look at people without feeling terrified that they are judging her.  [The child] has a small but close group of friends at school and she describes them as being attracted to one another by virtue of the fact that they are “quite antisocial” (not towards one another – to individuals external to their group)…

   She described an estranged relationship with her mother to whom she was previously close.  The relationship deteriorated as [the child] began formulating her own opinions.  She has isolated herself from her mother over the past year (eg not conversing with her mother) in an effort to avoid arguments and she finds her mother is preoccupied with playing a game on social media and speaking to the maternal grandmother on the phone.  [The child’s] depression reportedly set in as her relationship with her mother deteriorated and she has been unhappy for some time but has felt too fearful to leave her mother’s home.

   [The child] experiences her father as serious but kind and caring, particularly when it comes to her feelings.  She finds her father’s partner .. easy to get along with and she derives comfort in talking with her because the focus is not all about [the partner].

   [The child] feels misunderstood by her mother and she is unable to talk with her because it generates into arguments.  She told her mother she wanted to live with her father approximately a year ago and the mother allegedly began screaming; asking her why she was doing this to her and telling her she was going to ruin her life.

   …

   [The child] has tried talking to her mother about her anxiety (eg being unable to get out of the car due to a fear of people) and a desire to get help however her mother allegedly described her behaviour as attention seeking and told her she did not have problem.  [The child] then saw a school counsellor but had to keep this information from her mother because she was concerned she may stop it.

   …

   [The child] described a sense of hopelessness whilst at her mother’s as her depression worsened.. Despite this, she acknowledged her mother loves her and she does not want to continue to argue with her.  She would prefer to spend a limited amount of time at present.

   …

   [The child] feels happier at present.  She enjoys living with her father and [his partner] and she does not feel anxious “every time they come near me.”  She feels as though she is slowly getting better and she wants to remain living with her father… 

8. The matter took an unexpected turn, in that when the matter returned for mention, the mother advised me that, owing to her straitened financial circumstances as a result of no longer receiving child support, she was moving from G Town to Sydney on 23 December 2017.  She acknowledged that, in order to take the child with her, she would need to bring an application for interim relocation, but because she was without legal representation, she could not, and was not going to, do so.  She therefore recognised she would have to relocate without the child.  On a practical level therefore, the issue of with whom the child lived resolved, although the mother did not expressly abandon her application for a recovery order.  Nonetheless, the real focus of the ultimate interim hearing then became the circumstances in which the child should spend time with the mother.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

6. 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.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. Recently in Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements Pullman to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38]The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 FamLR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

2. Finally I should advert to s 61DA(3) which provides:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

3. In Salah (supra) at [34]-[35] the court said as follows:

   [34] Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (above) was emphasised in the decision of Treloar:

   78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult ...

   [35] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.

4. Later at [46] the Full Court continued:

   [46] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.

THE COMPETING PROPOSALS

1. I have already observed that the father seeks orders that he have sole parental responsibility for the child, who should live with him and spend only supervised time with the mother.  For her part, although seeking orders for the return of the child and the continuation of the 2013 orders, as I have just observed, in fact the mother’s imminent move to Sydney renders the prospect of such orders, without relocation being sought and permitted, practically impossible.

2. As to the father’s suggestion that she should spend supervised time with the child, the mother vehemently opposed such an order, and went further, saying if I were minded to find that she posed some sort of risk to the child which warranted supervision of her time, she would not wish to have such orders made, as she would not intend to avail herself of them.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. I have already observed in relation to the background facts, many matters which are not contentious.  However it is useful to further summarise those as follows:

   ·Up until 3 November 2017, the child had always primarily lived with the mother;

   ·Since then, the child has not spent time nor communicated with the mother, but rather has lived with the father;

   ·On 23 December 2017 the mother intends to relocate to Sydney without the benefit of a relocation order permitting the child to live there;

   ·The mother’s financial circumstances would not permit her to regularly travel back to G Town for the purposes of spending time with the child;

   ·The mother has, at least in the past, had mental health difficulties;

   ·The child has expressed to the family consultant that she wishes to continue to live with the father;

   ·The child has reported that in about the last year, her relationship with her mother has deteriorated, however wishes to maintain a relationship with her, and knows she is loved by her;

   ·The mother ceased the child’s attendance upon a counsellor in March 2014, against the psychologist’s recommendations.

PARENTAL RESPONSIBILITY

1. By virtue of her imminent relocation to Sydney without the benefit of a relocation order, thus precluding the child from accompanying her, the mother has practically conceded that the child should live with the father.

2. These parties do not have a history of a sound exercise of equal shared parental responsibility, and indeed, although that was provided for in the 2005 consent orders, it was not continued in the 2013 orders, but rather sole parental responsibility was awarded to the mother.  Absent any demonstrated history of communication leading to sound joint decision making, it is to be doubted that the parties presently have the capacity to do so, or to otherwise discharge their obligations under s 65DAC of the Act.

3. Moreover, there is the troubling matter that the mother ceased the child’s engagement with a psychologist in 2014, against the psychologist’s strongly expressed advice, and thereafter, notwithstanding the child’s apparent request to re-engage with a psychologist, has not facilitated the child doing so.  The child was plainly, at least according to the therapists, in dire need of psychological assistance, to the point where she herself went behind the mother’s back to seek assistance from school.

4. In her affidavit filed by leave on 5 December 2017, the mother, in substance, says that, if she had been aware of the results of a questionnaire (referred to as K10) administered by a general medical practitioner to the child which, recorded, amongst other things, answers that the child felt depressed all of the time, felt hopeless all of the time and felt worthless all of the time, that she would have immediately had the child “helped”. However the fact is that the child was living with her shortly before that test was administered.  This must cast doubt upon her capacity to be vigilant in the exercise of parental responsibility as regards such matters in a child focussed way.

5. In any event, in my view, given that, as I have indicated, on a practical level, the issue of with whom the child should live has been foreclosed by the mother, parental responsibility should rest with the father.  Principally that is because the parties have no history of demonstrated communication leading to joint decision making, and the child is likely to be spending most, if not all, of her time with the father in the foreseeable future.

WITH WHOM SHOULD CHILD LIVE

1. I have already observed that on a practical level, by virtue of her intention to permanently move to Sydney on 23 December 2017 without the child, the mother has foreclosed the dispute in relation to with whom the child should live.  She made it plain that, no matter what order was made, she was moving.

2. However a number of other matters support an order that the child live with the father namely:

   ·It accords with the child’s wishes.  She is 13 years of age and those wishes deserve considerable weight;

   ·The father has been active in supporting the child in dealing with her mental health issues, whereas the mother has not;

   ·As I shall shortly discuss, the mother has a history of some mental health issues herself, which may, at least at this time, see the father better placed to provide care for the child;

   ·It accords with the recommendations of the family consultant who conducted the Child Inclusive Conference.

3. I am therefore satisfied that there should be, on an interim basis, an order that the child live with the father, as such an order is in the child’s best interests.

TIME AND COMMUNICATION WITH MOTHER

1. The mother proposed that the child should spend half of the school holidays with her in Sydney, or wherever she can take her on a holiday.  She further sought that the father pay for the airfares to and from Sydney for the child, as she was unable to do so.

2. For his part, the father opposes any such order, and says that the mother’s time should be supervised, whether at a Contact Centre, or by a privately funded supervisor.  However practically that will require the mother to travel to wherever the supervision occurs, or alternatively for the child to travel instead.  The material does not enable me to conclude that is feasible on any kind of regular basis.

3. Against that practical difficulty, I inquired of the parties whether they would oppose a communication regime between the child and mother, so as the relationship can continue.  Provided that he was permitted to supervise any calls initiated by the mother, the father indicated that he would not oppose such an order, nor that the child be able to initiate calls to the mother herself, in which event those calls would not be supervised by him.  That latter is, in any event, afforded to the child under the 2013 orders.

4. Turning to the reasons why the father says that the mother’s time should only be supervised at this point in time, requires an assessment, on an interim basis, of the risks which the mother may pose to the child if they were to spend unsupervised holiday time together.  The father led considerable evidence in relation to the mother’s past mental health problems, which long pre-dated the 2013 orders, for instance a report of Dr E dated 17 September 2007 in which, although apparently not preferring one over the others, he indicated that he had considered several diagnostic possibilities for the mother, including chronic paranoid schizophrenia and schizotypal personality (with her manifesting brief frank psychotic symptoms during times of stress) or untreated chronic depressive illness, with there being brief character aggressions, such that she has manifested frank psychotic symptoms, or at least suffered from some transient impairment of reality testing.

5. However in her material, the mother denies that she is presently suffering any ill health, and said in her outline:

   I’m a normal person with perfect health and will not be subjected to doctors anymore.

6. On an interim basis, it is of course very difficult to make any firm conclusions in relation to the mother’s current mental functioning.  Certainly there is limited material post the 2013 orders.  However the following facts can comfortably be established on an interim basis:

   ·The mother has not engaged with a psychiatrist since, it seems, December 2008, but Dr E’s report at that time was that the mother’s mental state examination was “unremarkable”;

   ·In February 2014, the child’s psychologist (noting that she was then either at, or towards the end of, her therapeutic retainer) opined that the child “is in very difficult situation in which her mother’s mental health illness has impacted on and continues to impact on her own emotional wellbeing.  [The mother] appears to have many anxieties, which result in [the child] feeling very stifled”;

   ·It does not appear as though the mother continued to consult her psychologist, other than on one occasion, after the 2013 orders;

   ·The child has disclosed to the father some concerning behaviours of the mother, for example, the mother had a belief that she was having an online relationship with a famous singer, stays at home for days on end without leaving the home, has sued a landlord for what appears to have been a trifling matter, accused the child of being a lesbian, constantly denigrates the child and the father’s partner, has screaming episodes at home, sprinkled the child with “holy water” and put rosary beads around her neck when she was asleep in bed, and has apparently threatened the child’s school with legal action.

7. Dr H, the Family Consultant who conducted the Child Inclusive Conference interviews and drafted the subsequent memorandum, is a psychologist.  She noted that:

   [The mother] reported no history of any mental health problems or illness.  When the Family Consultant asked about previous suggestions that she may have suffered from some psychosis, she refuted this and said that there was no evidence, whatsoever, to suggest she had a psychotic disorder.  She saw [Dr E] in 2005 and last consulted with him over 10 years ago.  She also saw Dr J on one occasion in 2013, because she was ordered to do so.

8. However the child also reported to Dr H some concerning behaviours of the mother.  For instance she recorded:

   [The child] has been worried about some of her mother’s alleged obsessive behaviours.  This included her mother allegedly becoming obsessed with an engaged man, whom she met when she worked briefly at a high school and the subsequent changes in her behaviour (eg allegedly – incessantly talking about him; running up and down the stairs and around the house for exercise and buying new clothes).

9. As to the mother’s mental health, she concluded:

   The stability of the mother’s mental health is unclear.  There is contrasting information with respect of the mother’s reports that she has never suffered any mental health illness or problems in the contents of the court file material.  If the information provided by the child is factually correct, then changes in the mother’s behaviours have caused [the child] concern and the mother has been critical of the child’s mental health and potentially emotionally abusive when talking to the child about the negative impact that her mental health has on her own life (ie the mother’s) and issues surrounding the father.  The Family Consultant would support a psychiatric assessment of the parties and it may assess the court to obtain subpoena material.  The Family Consultant would support orders that the mother attend upon her general practitioner to obtain a mental health plan for professional counselling support given her distress over not seeing her daughter.

10. Dr H concluded that:

    There is a significant risk that [the child’s] mental health could potentially deteriorate if she is made to go back and live with her mother at this time.  In order to ensure the safety of [the child’s] mental health, the Family Consultant would support orders for the child to remain living with her father and if she is to spend time with her mother, then the Family Consultant would support this being supervised.

11. On 28 November 2017, the child’s counsellor at C Group recommended that:

    Ultimately it would be beneficial to be able to maintain some relationship between [the child] and her mother, however at this point I would suggest that this would need to be led by [the child].  If [the child] displays any fear or a resistance to contact, I would suggest that mediation, or supervised contact through Relationships Australia would be the safest pathway forward.

12. Ultimately the following factors weigh in favour of supervised time, or are contrary to the mother’s proposals:

    ·It would minimise any risk of psychological harm which the mother may pose to the child;

    ·It would allow the reintroduction of the child to the mother in a safe environment, where the time could be terminated if needed, or the mother assisted to engage appropriately with the child, if she was not doing so;

    ·The only practical option for the child to spend time with the mother is in Sydney, in circumstances where it would be difficult for the child to terminate that contact if it proved uncomfortable for her.

13. On the other hand, the following tell in favour of the mother’s proposal:

    ·The child wishes to maintain a relationship with the mother;

    ·It is practically impossible for the mother to avail herself of supervised time in G Town, given the expense of travel, and the likely limited amount of time that she would be able to spend with the child;

    ·Given the mother intends to eschew any supervised time, her proposal is the only way face-to-face time between her and the child could occur.

14. Weighing those matters in the balance, accepting that this is an interim hearing, I am satisfied that, at least initially, the mother’s time with the child should be supervised.  If supervised time were demonstrated to be of benefit to the child, who was not stressed or otherwise troubled by re-engaging with the mother, then the lifting of any requirement for supervision could sensibly be considered.  However it seems to me that, notwithstanding that the child has lived with the mother all her life, recent events suggest that lengthy periods of unsupervised holiday time with the mother at this point in time, would be premature.

15. The difficulty is that the mother has indicated that she does not intend to avail herself of any supervised time, were it ordered with the child.  That is to be regretted.  It is particularly to be regretted, because the mother will soon be leaving G Town, with apparently no intention to return.  I would strongly recommend that she seek to have some supervised time with the child in G Town before she leaves, but I fear that advice will fall on deaf ears.  The father indicated, through his solicitor during the course of the hearing, that he would be prepared to fund a private supervisor, a local psychologist, and if that remained an option, then it would be sensible for the mother to avail herself of it.

16. Absent any workable, safe regime of unsupervised face-to-face time, and given the mother’s expressed disavowal of any intention to avail herself of supervised time, there is no point making any order for supervised time.

17. However there should be an order for communication between the mother and child, so as to ensure that the relationship between them does not wholly terminate.

1. The mother indicated that she would avail herself of a communication regime were it ordered, and I am satisfied that a regime where she telephone or Skypes with the child each Sunday and Wednesday between 6:00pm and 6:30pm, with the father being at liberty to personally supervise or monitor that time and terminate it if the conversation becomes inappropriate, is in the child’s best interests.  Further, the order in relation to the child being permitted to telephone the mother at any time, should continue.

CONCLUSION

1. For these reasons there will be orders as sought by the father in relation to the parenting of the child.  There will further be orders for the appointment of an Independent Children's Lawyer, and for the preparation of a Family Report and psychiatric assessments.             

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 December 2017.

Associate:

Date: 15 December 2017