Pullman & Garafolo
[2021] FedCFamC1F 113
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pullman & Garafolo [2021] FedCFamC1F 113
File number(s): MLC 6923 of 2017 Judgment of: MCEVOY J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – CHILDREN – where final orders were made on 9 January 2020 for the father to have sole parental responsibility and for the child to live with him – where final orders were not made on 9 January 2020 for time between the child and the mother pending the participation by the mother in a programme of treatment with a psychiatrist to address her Delusional Disorder – where the father filed an application that the child’s time with the mother be reduced – where the child is coping well living with the father – where the mother’s psychiatrist finds she no longer suffers from Delusional Disorder – where the evidence of the mother’s psychiatrist bodes well for the future of the mother if she continues to engage in a treatment regime – where it is in the best interests of the child that her time with the mother be increased from the present interim arrangements Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Cases cited: CDJ v VAJ (1998) 197 CLR 172
Paisio & Paisio (1979) FLC 90-659
Pullman & Garafolo (No.2) [2020] FamCA 1143Pullman & Garafolo [2020] FamCA 3
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 7 June 2021 Place: Melbourne Counsel for the Applicant: Mr James Solicitor for the Applicant: Rush & Hampshire Counsel for the Respondent: Mr Leeton Solicitor for the Respondent: Mmh Lawyers Counsel for the Independent Children’s Lawyer: Mr O’Connell Solicitor for the Independent Children’s Lawyer: Macgregor Solicitors ORDERS
MLC 6923 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PULLMAN
Applicant
AND: MS GARAFOLO
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.The parenting orders of 7 December 2020 be discharged.
2.The child spend time and communicate with her mother as follows:
(a)from 9:30am on Saturday until 5:30pm on Sunday in each alternate week during school term, with the mother to collect the child from the father on Saturdays and the father to collect the child from the mother on Sundays;
(b)from the conclusion of school on each Wednesday during school term, until 7:00pm, with the mother to collect the child from school and return her to the father’s home at the conclusion of time;
(c)for one half of each of the school term holidays as agreed and failing agreement the first half in even numbered years (commencing the last day of school and concluding 5:00pm on the middle Saturday) and the second half in odd numbered years (commencing 5:00pm the middle Saturday and concluding 5:00pm the last day of the holidays);
(d)for one half the long summer school holidays as agreed between the parties and failing agreement the first half in even numbered years (commencing 26 December and concluding 5:00pm on the middle day) and the second half in odd numbered years (commencing 5:00pm the middle day and concluding 5:00pm the second last day of the holidays);
(e)from 5:00pm on the Saturday prior to Mother’s Day until 5:30pm on Mother’s Day, with the mother to collect the child at the commencement of time and the father to collect the child at the conclusion of time;
(f)on the child’s birthday from after school until 5:30pm on a school day and from 12noon until 4:00pm if the birthday falls on a weekend where the child is in the father’s care;
(g)on:
(i)the mother’s birthday;
(ii)Y’s birthday on …; and
(iii)the maternal grandmother’s birthday on …;
from after school until 7:00pm on a school day and from 12noon until 5:00pm on a non-school day
(h)from 5:00pm on Christmas Eve until 1:30pm Christmas Day in even numbered years and from 1:30pm Christmas Day until 5:00pm Boxing Day in odd numbered years;
(i)during the Easter Long Weekend from Good Friday at 3:30pm until Easter Sunday 5:00pm, in odd numbered years; and
(j)at such other times as may be agreed between the parties, in writing, from time to time.
3.The mother’s time referred to in order 2 herein shall be suspended as follows:
(a)order 2(a) and (b) shall be suspended during school holidays;
(b)on Father’s Day, from 5:00pm on the Saturday prior to Father’s Day;
(c)on the child’s birthday from 12noon until 4:00pm if it falls on the mother’s weekend;
(d)on the father’s birthday from 3:30pm until 7:30pm;
(e)from 5:00pm Christmas Eve until 1:30pm Christmas Day in odd numbered years and from 1:30pm Christmas Day until 5:00pm Boxing Day in even numbered years;
(f)during the Easter Long Weekend from Good Friday at 3:30pm until Easter Sunday 5:00pm, in even numbered years; and
(g)during the second half of National Aborigines and Islanders Day Observance Committee (“NAIDOC”) week from 9:00am Thursday until 5:00pm Sunday.
4.Where it is not otherwise specified in these orders or as agreed, the parent whose time is about to commence shall collect the child from the other parent.
5.The mother continue to attend upon her treating psychiatrist, for as long as directed by such psychiatrist, and shall continue to attend all appointments as directed and follow all other lawful directions of her treating psychiatrist in relation to her treatment including, but not limited to, taking medication.
6.The mother authorise her treating psychiatrist to provide a report to the father at least once every three (3) months, briefly outlining:
(a)her attendance at appointments;
(b)her compliance with treatment;
(c)any other relevant matters; and
(d)the mother shall meet all costs associated with such reporting and attending her treating psychiatrist.
7.The mother be at liberty to:
(a)communicate with any school or education-related professional involved with the child;
(b)receive school reports, newsletters, photographs from or any other such information usually provided to parents;
(c)attend at the child’s school events such as parent-teacher interviews, graduations, concerts, sporting events and any other event that parents are usually invited to attend;
(d)communicate with any medical or allied health professionals providing treatment or care for the child;
(e)be at liberty to take the child to any extra-curricular activities that the child wishes to participate in whilst in her mother’s care; and
(f)produce these orders as evidence of such authority.
8.Both parents keep the other informed of any illness or injury suffered by the child whilst in their care, including providing details of medical professionals attended upon and medication prescribed and both parents shall be permitted to liaise with any such medical professionals in relation to the child’s medication.
9.The parents shall communicate in relation to issues involving the child by text message or email, including providing details of the child’s routine, medical issues and diet.
10.The father be permitted to travel overseas with the child for a period not exceeding four (4) weeks every alternate year, and the mother shall be granted make up time upon their return.
11.Save and except for Easter day and Christmas day/eve which fall in the mother’s time, the mother be restrained from taking the child to any religious event or instructing the child in religion unless by written agreement with the father.
12.The parents forthwith engage with Ms W to attend upon her for parenting coordination sessions and follow all her reasonable directions and recommendations.
13.The parents share equally any costs associated with attendance upon the parenting coordinator.
14.The appointment of the Independent Children’s Lawyer be discharged.
15.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A. Paragraphs 1 to 11 of the orders made by the Honourable Justice McEvoy on 9 January 2020 remain in full force and effect.
B. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the annexure to this order and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pullman & Garafolo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J
INTRODUCTION
On 9 January 2020, after a three day trial which concluded in September 2019, I made final orders that the father have sole parental responsibility for the child, now aged seven and in grade 1, and that she live with him. The child had previously lived with the mother, but the mother suffered from Delusional Disorder and she had made a series of unfounded allegations of sexual abuse against the father. I determined that the mother did not have the capacity to promote a relationship between the father and the child, and that she presented an unacceptable risk of emotional and psychological harm to the child.
I did not, however, make final orders in relation to how much time the child should have with the mother going forward. Instead I determined that it would be preferable to defer the making of final orders in relation to time for 12 months to enable the mother to undergo a programme of psychiatric treatment to address her Delusional Disorder, and that the matter could then be revisited. I made interim orders for the child to have overnight time with the mother, essentially every other weekend for three nights, and for three hours each Wednesday after school, as well as on school holidays and special days. This regime was substantially that which the father had contended for at the trial on a final basis. Indeed, it was a feature of the father’s position at trial, and when the orders were pronounced on 9 January 2020, that he wanted the mother to have more unsupervised time with the child than I would otherwise have been inclined to permit.[1]
[1] [2020] FamCA 3, p.76 (Addendum)
However on 10 November 2020 the father made an application to reduce the child’s time with the mother, deposing in affidavit material that the time the child had spent with the mother in the intervening eleven months had been problematic. The mother asserted to the contrary in an affidavit filed by her. At the hearing on 7 December 2020 both the father and the mother were cross examined. Ultimately I preferred the father’s evidence that the mother was not approaching the new regime as she should have been. However the mother and Independent Children’s Lawyer (“ICL”) pressed that a final decision in relation to the child’s time with the mother should be deferred until the mother had had an opportunity to obtain a further report as to her condition from Dr C, the psychiatrist who had given evidence at the hearing in 2019. The mother had not been able to obtain such a report at that time.
While accepting that the mother should have the opportunity to obtain a further report from Dr C, I made further interim orders on 7 December 2020 granting the father’s application and curtailing the child’s time with the mother essentially by providing that she have Saturday nights only every other weekend, and that holiday time in the long summer vacation be reduced to one week.[2] I also made orders dealing with special days, restraining the mother from taking the child to any religious services save for at Easter and Christmas unless with the written agreement of the father, and for ancillary matters. The matter was listed for further hearing on 30 April 2021. That hearing date was later adjourned, on the mother’s application, to 7 June 2021. It is the question of final orders as to the child’s time with the mother that now falls for determination. For the reasons that follow there will be orders broadly along the lines of those presently in place insofar as weekend time is concerned, with the child to have half of school holidays with the mother.
[2] [2020] FamCA 1143
The background to the matter more generally is set out in my judgment of 9 January 2020.[3]
[3] [2020] FamCA 3 at [18]-[26]
THE PARTIES’ POSITIONS
On 26 April 2021 the father filed a further application in a case and supporting affidavit seeking that all previous parenting orders be discharged and proposing that the child have no overnight time at all with the mother.
The father’s proposed regime, amended in minor respects for the purposes of the 7 June 2021 hearing, contemplates the child having time with the mother each alternate Sunday from 9.30am until 5.30pm and after school on Wednesday from 3.30pm to 7.00pm. It also makes provision for special days. The father proposes that the child spend time with the mother on the first Sunday of all school term holidays from 9.30am to 5.30pm, and in the long summer holidays on the first two Sundays and the last Sunday from 9.30am until 5.30pm. His proposed orders also provide that the mother will continue to attend her treating psychiatrist and authorise him to provide a report to the father at least once every three months for a period of 12 months detailing her attendance, compliance with treatment, and any other relevant matters. The father also proposes that the mother be permitted to engage with the school and the child’s health professionals, that the parties be required to keep each other informed about any illness or injury suffered by the child, that they communicate by SMS, that he be permitted to travel overseas with the child for a period not exceeding four weeks every alternate year, and that the mother be restrained from taking the child to any religious events save for Easter and Christmas without his written agreement.
On 24 May 2021 the mother filed a response to the father’s 26 April 2021 application. She seeks that all previous orders be discharged, that the father’s application be dismissed, and that the child spend overnight time with her each Wednesday evening until Thursday morning, as well as each alternate weekend from the conclusion of school Friday until the commencement of school Monday, half of the school term holidays and three weeks of the long summer holidays. The mother also proposes orders for special occasions, that she continue to attend her treating psychiatrist, that she authorise her psychiatrist to provide a report to the ICL at least once every three months, and that the parties engage with parenting coordination sessions. She proposes substantially similar orders to the father in relation to her engagement with the school and the child’s health professionals, communications between the parties, and the father travelling overseas with the child. She also seeks to take the child to religious events relating to the child receiving her Catholic sacraments, and extra-curricular activities while the child is in her care.
The ICL’s proposal for the child’s time with the mother is not as limited as that proposed by the father, although it is less than that proposed by the mother. The ICL’s position was also that all previous parenting orders be discharged, and that the child should spend time with the mother from the conclusion of school Friday until 5.30pm Sunday each alternate week, each Wednesday during school term after school until 7.00pm, and for one half of each school term holiday and long summer school holidays. The ICL proposes that the mother continue to attend on her treating psychiatrist for as long as he directs, that she authorise her treating psychiatrist to provide a report to the father every six months, that she be permitted to engage with the school and the child’s treating health professionals, and that she be permitted to have the child receive her Catholic sacraments and have the child participate in extra-curricular activities while she is in her care. The ICL also proposes similar orders to the parties concerning communication and travel, and that the parties participate in parenting coordination sessions.
MATERIAL RELIED ON
The father relied upon the following documents:
(a)application in a case filed 26 April 2021;
(b)his affidavit filed 26 April 2021; and
(c)an outline of submissions filed 1 June 2021.
The father also relied on material he had filed for the purposes of the 7 December 2020 hearing, together with the Court’s judgments of 9 January 2020, 25 February 2020 and 7 December 2020.
The mother relied upon the following documents:
(a)response to application in a case filed 24 May 2021;
(b)affidavits of Dr L, her treating psychiatrist, dated 13 April 2021 and 27 April 2021;
(c)affidavit of Dr C filed 13 May 2021 and accompanying annexure;
(d)her affidavit of 24 May 2021 and accompanying annexures; and
(e)an outline of submissions filed 1 June 2021.
The ICL relied upon the following documents:
(a)affidavits of Dr L filed 13 April 2021 and 27 April 2021 and accompanying annexures;
(b)affidavit of Dr C filed 13 May 2021 and accompanying annexure; and
(c)affidavit of Ms V, the child’s play therapist, filed 13 May 2021 and accompanying annexure.
THE EVIDENCE
The competing applications for final orders in relation to the child’s time with the mother were heard on 7 June 2021. It is to be emphasised that final orders were made on 9 January 2020 in relation to parental responsibility, the child’s residence, and certain ancillary matters. There was no occasion at this most recent hearing to re-visit the final orders made on 9 January 2020, or aspects of them. At this stage, consistently with the 7 December 2020 further interim orders, the child is spending every other Saturday night with the mother.
At the hearing on 7 June 2021 counsel for the parties indicated that in circumstances where the parties had both been cross examined on 7 December 2020, they were content to rely upon the material now before the Court and did not seek to cross-examine their respective clients further, or to cross examine Ms V, Dr C or Dr L.
The Father’s Evidence
The father’s position is that at the hearing on 7 December 2020 the parties’ evidence as to the way the child’s time with the mother was progressing was tested in cross-examination and that his evidence, and that of his mother and step-father, was accepted. The father refers to his evidence on 7 December 2020 about his concerns that the mother was discussing the proceedings with the child, his concerns surrounding toileting issues and the child’s pants wetting, and other un-child focused behaviour on the part of the mother. The father also relies on those aspects of the mother’s evidence on 7 December 2020 which I did not accept.[4]
[4] Father’s outline of submissions filed 1 June 2021, p.4-5
The father refers to the following matters of continuing concern in his affidavit filed 26 April 2021:
(a)the child’s pants wetting which has continued and escalated to the point that the child disclosed that she had been hiding under the bed at the maternal grandmother’s house;[5]
(b)the child’s comments to him which suggest that the mother is continuing to discuss the proceedings with her, including on one occasion the child saying to the father “when I am 12, I won’t be living with you”;[6]
(c)the mother exposing the child to inappropriate screen content causing the child to become scared and to have nightmares;[7]
(d)the mother’s failure to communicate and respond to him in relation to arrangements for the child;[8]
(e)what he says is a shift in the themes of the child’s play therapy towards safety which Ms V, the child’s play therapist, has told him may be related to the child’s time with the mother;[9] and
(f)the mother’s general behaviour which he says demonstrates a continuing refusal by her to co-parent, and a preparedness to continue to undermine his relationship with the child.[10]
[5] Father’s affidavit filed 26 April 2021, paragraphs 2-3
[6] Father’s affidavit filed 26 April 2021, paragraphs 4-9
[7] Father’s affidavit filed 26 April 2021, paragraphs 10-14
[8] Father’s affidavit filed 26 April 2021, paragraphs 15-20
[9] Father’s affidavit filed 26 April 2021, paragraphs 21-25
[10] Father’s affidavit filed 26 April 2021, paragraphs 26-33
The father says that he is concerned about the child continuing to be exposed to the mother’s mental illness and the mother’s escalating questioning and involvement of the child on the subject of her current and future living arrangements. He maintains that the mother’s escalating behaviours are emotionally burdening the child and that she is acting out her distress. It is the father’s position that these concerns are exacerbated by overnight time which increases the mother’s opportunity to question the child and discuss adult issues with her.
The Mother’s Evidence
In contrast to the father the mother deposes in her affidavit of 24 May 2021 that she has been making efforts to co-parent more effectively with the father and place the child’s needs first. She says she understands the importance of supporting the father’s role as the child’s primary caregiver.[11] The mother says that she believes it is the father who is unwilling to facilitate a meaningful relationship between her and the child, and she says the arrangements in place are not sufficient to allow for her and the child to have a meaningful relationship.[12] The mother disputes the validity of the concerns expressed by the father in his affidavit, outlining an alternate explanation in relation to these matters.[13] The mother also asserts that she now realises that “[her] mental health condition misinterpreted past events and [she is] apologetic for past accusations [she] now realise[s] were incorrect”.[14]
[11] Mother’s affidavit filed 24 May 2021, paragraph 13
[12] Mother’s affidavit filed 24 May 2021, paragraphs 11-14
[13] Mother’s affidavit filed 24 May 2021, paragraphs 35-97
[14] Mother’s affidavit filed 24 May 2021, paragraph 95
Dr L’s Reports
Dr L’s affidavit of 13 April 2021 exhibits letters from him to the ICL dated 7 May 2020, 23 July 2020 and 1 December 2020. His affidavit of 27 April 2021 exhibits a letter to the ICL dated 27 January 2021. It would seem that at least initially the mother has been attending on Dr L more or less monthly. In all these letters Dr L confirms that the mother has been attending her appointments regularly. In his 7 May 2020 letter Dr L reports that the mother has been compliant in her treatment but he otherwise does not disclose how her treatment is progressing. This is because of a therapeutic agreement that Dr L says he has formed with the mother keeping his involvement with her private and confidential to ensure that she feels safe to open up to him. Dr L’s letter of 23 July 2020 is in similar terms.
However Dr L’s letter of 1 December 2020, for some reason, goes into further detail. It confirms that the mother is still suffering from Delusional Disorder and specifies her prescription regime. This letter does not disclose how her treatment is progressing, although it does indicate that the mother has gained some insight into her condition. Dr L notes, however, that the mother “wishes to obtain a second opinion regarding diagnosis and treatment”. He recommended that another psychiatrist be approached to provide a more detailed report of the mother’s presentation. Dr L’s letter of 27 January 2021 confirmed that the mother remained on an antipsychotic drug, that she was not a risk to herself or others, and refers once again to the therapeutic agreement he had formed with her to keep the scope of his involvement private and confidential.
Dr C’s Updated Psychiatric Assessment
Dr C’s report is dated 20 April 2021. In it he indicated that he had read the parties’ affidavit material, the orders of 9 January 2020, and the letters of Dr L dated 7 May 2020, 23 July 2020 and 1 December 2020. It is apparent from the terms of his report that he had also read the judgment of 9 January 2020.
The mother saw Dr C on 14 April 2021. He records that she was devastated and shocked by the Court’s judgment, but that over time she has looked back and read the reports of the experts and, with encouragement and support, has realised that she had a “form of tunnel vision”.[15] Dr C refers to the mother’s own reflections about how she had become narrow-minded, had developed a different mindset in the context of treatment, and observes that she had come to realise that the father was not a risk to the child in the way that she had considered.[16] He reports that the mother told him that she had needed to correct her views in the context of the opinions of the experts, and that she “has come to accept the reality of her position and is determined to make the best of her time with her daughter”.[17] Dr C also observes “it appears that either as a result of treatment and/or sanctions ordered by the Court with a change of residence and more recent decreased contact even further, [the mother] has come to accept the reality of her position, or at least says she has, i.e. that she was in the wrong and needs to essentially make amends…”.[18]
[15] Affidavit of Dr C filed 13 May 2021, annexure -1, p.3
[16] Affidavit of Dr C filed 13 May 2021, annexure -1, p.4
[17] Affidavit of Dr C filed 13 May 2021, annexure -1, p.5
[18] Affidavit of Dr C filed 13 May 2021, annexure -1, p.6
On the subject of the mother’s presentation and approach, Dr C considered that it was:
“…qualitatively different to when I first saw her and whilst much of the change may be explained by the sanctions of the Court as referenced previously, [the mother] appeared eager to improve the parenting dialogue between the parties, albeit and quite probably on the basis that a repair of their relationship is possibly one path to having increased contact with [the child] who she impressed as clearly loving”.[19]
[19] Affidavit of Dr C filed 13 May 2021, annexure -1, p.6
Dr C concluded his report as follows:
1.Having assessed [the mother] on this occasion, I cannot find any ongoing evidence of a continuing Delusional Disorder. Dr L has undertaken to attend upon [the mother] for confidential counselling rather than reportable counselling, but having said that, I do respect his reasons for doing so.
2.Hopefully there may now follow a period where a more peaceful ambience will emerge between the parents if [the mother] remains true to her word. It is also readily evident that she is wishing for increased contact with her daughter.
3.If there have been no more recent concerns about her regarding her relationship with [the child], the Court may wish to restore the level of contact and set of arrangements that she enjoyed with [the child] prior to the restriction of contact to one weekend a fortnight which occurs at present.[20]
….
(Emphasis added)
[20] Affidavit of Dr C filed 13 May 2021, annexure -1, p.6-7
Whilst it would seem from Dr C’s report that he does not consider that the mother still suffers from Delusional Disorder and that she may have gained some insight into the reality of her position, he seems also to contemplate that the change in her presentation may be as much by reason of the orders which have been made limiting her time with the child as by reason of any genuine change, therapeutically achieved, in her underlying attitude towards the father. It is also to be noted that Dr C’s opinion that it may be appropriate to restore the set of arrangements which was in place prior to 7 December 2020 is predicated on the absence of any recent concerns about her regarding her relationship with the child. As will be apparent from the father’s evidence, both on 7 December 2020 and in his affidavit of 26 April 2021, this predicate is difficult to establish.
Ms V’s Play Therapy Report
Ms V’s detailed report is dated 26 April 2021. Its purpose is to explain the progress of the child’s play therapy, which commenced in July 2020 and has comprised at least 35 sessions, and to provide an overview of the child’s progression and development by reference to her treatment goals. Although she identifies certain issues, ultimately Ms V concludes that the child has reached an “Empowerment and Mastery stage of the Play therapy process, where her emotional maturity is now more aligned to her chronological age”.[21]
[21] Affidavit of Ms V filed 13 May 2021, annexure -1, p.27
Nonetheless, there are some troubling features of Ms V’s report. In the first place it would seem that in her play therapy the child has continued to struggle with perceptions around safety, fears and anxieties and has sought security and reassurance around these concerns.[22] Ms V reports that the child has experienced “a high level of internal conflict and confusion regarding her current living arrangements, provided that she is spending individual time between two different households”.[23] In this respect there is some evidence that the mother has struggled to accept the 7 December 2020 orders restricting her time with the child, with Ms V recording that the mother telephoned her on 17 December 2020 expressing her “worries and concerns around the recent Court-related decisions for visitations, particularly around how the decreased contact time may emotionally affect and impact [the child’s] wellbeing”.[24] Disturbingly, Ms V reports that at times in her play therapy the child has enacted “chaotic, destructive and conflictual” themes,[25] and has demonstrated “levels of confusion and uncertainty around family relationships and who belonged where”.[26] Ms V also commented on the child’s conflict and confusion when “trying to differentiate between ‘Good’ and “Bad’ forces”, something which she has apparently struggled to do.[27]
[22] Affidavit of Ms V filed 13 May 2021, annexure -1, p.10
[23] Affidavit of Ms V filed 13 May 2021, annexure -1, p.11
[24] Affidavit of Ms V filed 13 May 2021, annexure -1, p.13
[25] Affidavit of Ms V filed 13 May 2021, annexure -1, p.14
[26] Affidavit of Ms V filed 13 May 2021, annexure -1, p.16
[27] Affidavit of Ms V filed 13 May 2021, annexure -1, p.18
It is not altogether clear, however, whether these observations have any continuing currency. As well as noting in her concluding observations that the child’s emotional maturity is well progressed, Ms V reports that the child has now almost reached the termination phase of the play therapy process “where she will be equipped with the required skill-set to fully transition out of Play therapy”.[28] Importantly she also observes that the father has reported that the child is now close to having most of her presenting concerns to therapy resolved.[29]
[28] Affidavit of Ms V filed 13 May 2021, annexure -1, p.27
[29] Affidavit of Ms V filed 13 May 2021, annexure -1, p.27
FINAL ORDERS IN RELATION TO TIME
The mother has been the subject of a finding that she has no functional desire to ensure a place for the father in the life of the child, that she has no real interest in co-parenting with him, and thus that she presents an unacceptable risk of emotional or psychological harm to the child were the child to continue to live with her.[30] It was on this basis that the father has been granted the primary care of the child.
[30] [2020] FamCA 3 at [252]-[254]
When these findings were made, and having regard to the matters required to be considered by s 60CC of the Family Law Act 1975 (Cth) (“the Act”), I indicated that I entertained some concerns as to whether, in the aftermath of a change of residence, it would be desirable for the mother to have unsupervised time with the child.[31] The mother’s psychiatric condition was an important part of the context in which I expressed this view.
[31] [2020] FamCA 3 at [252]-[254]
However in light of the father’s support for unsupervised time, including overnight time, I was prepared to acquiesce in a regime that permitted this, and interim orders were made accordingly.[32] As has been mentioned, these orders subsequently required modification reducing the child’s overnight time with the mother. Unfortunately it would seem that at least on one view my original concerns were well founded, and that the father’s initial confidence that overnight time was feasible was misplaced. The other view of course, which the mother and the ICL now press on the basis of the more recent evidence, is that looked at as a whole the change of residence has largely been a success, and it would not be in the child’s best interests to regard the father’s concerns as justifying a further restriction on the child’s time with the mother. Whatever final regime is to be imposed needs to take account of these different perspectives having regard to all of the evidence available since 7 December 2020.
[32] [2020] FamCA 3 at [266]-[269], [276]-[277]
The Parties’ Submissions
The father, relying on his own evidence and that of Dr C and Ms V, submits essentially that the mother’s behaviour is continuing to be problematic. He says that her reluctance to accept his parental authority, her engagement with the child in relation to matters the subject of the litigation, and her constructive refusal to parent cooperatively, is perpetuating the child’s feelings of being conflicted and intensifying her fears and anxieties. Although he accepts that there may have been some improvement in the mother’s psychiatric condition, he notes Dr C’s qualification that extending the mother’s time should be subject to there having been no more recent concerns about her in her relationship with the child. This he says is not the case: there have been ongoing concerns of the kind he has described.
Also significant on the father’s case is Dr C’s observation that the mother’s change in presentation may be explained by the sanctions of the Court. Critically the father points to the mother’s evidence that the father “appears to be unwilling to facilitate a meaningful relationship” between the child and him as indicative of her current attitude to him and her refusal to accept his authority. Thus he submits that the mother’s treatment over the last 18 months has not been sufficiently effective to justify final orders that the child spend time with her to the extent reflected in the interim orders, and certainly not to any greater extent than that. He maintains that the best interests of the child require the significant curtailment of the child’s time with the mother as contemplated by the orders that he proposes.
For her part the mother contends that the present arrangements are insufficient for her and her extended family to continue to have a meaningful relationship with the child, and that this is not in the child’s best interests. She disputes the father’s concerns, and notes Ms V’s ultimate conclusion that the child is becoming more emotionally mature. She contends also that she has been compliant with her treatment regime, and emphasises Dr C’s observation that he cannot find any ongoing evidence of a continuing Delusional Disorder on her part and that she has developed insight into her condition. In this latter respect however it may be observed that Dr C in fact records that the mother has told him that she has developed insight into her condition, which is somewhat different. In any event, the mother submits that the child’s present time with her should be enlarged, consistently with the orders that she proposes, and that she and the father should enlist the assistance of a parenting coordinator to improve communications between them. She also presses for the restraint regarding religious activities to be removed.
For her part the ICL is positive about what has been achieved. She submits that two remarkable things have now occurred: the first is that the child has settled well into the change of residence, and the second is that the mother’s attitude appears to have changed. The ICL submits that with the assistance of Dr C the mother has found a therapist with whom she has been working consistently and that she has been taking her medication. The ICL notes that Dr C (who at trial was pessimistic about the mother’s ability to respond to treatment) now seems to think that she no longer suffers from her Delusional Disorder and is on the road to recovery.
Insofar as the father has expressed concerns, the ICL submits that given the history of the matter the concerns the father holds about the child’s various statements to him are not unreasonable, but excessive weight should not be attributed to them by the Court. The ICL suggests that the statements the child has made do not necessarily mean that the mother has sabotaged or tried to sabotage the new arrangements, and that it is difficult to know where these statements have come from. On the subject of the father’s change of position from originally being supportive of the mother having unsupervised overnight time to now contending for no overnight time, the ICL submits that nothing much turns on this. It is the ICL’s position that there is bound to be some trouble with a child who has changed residence, but that in considering the father’s material there is nothing that has stood out as particularly troublesome in this respect. For example, the pants wetting and the child being disobedient are things that would be expected in light of everything that has happened and do not necessarily indicate sabotage of the arrangements by the mother.
The ICL submits that if sabotage had occurred she would not expect the change of residence to have been as successful as it appears to have been. Accordingly the ICL submits that it would now be in the best interests of the child for her to spend substantial and significant time with the mother (although not quite to the extent the mother seeks) so as to support the development of the child’s relationship with the mother and the extended maternal family.
Disposition
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Lord Fraser’s observations are of particular relevance here where the evidence is somewhat equivocal about the extent to which the mother has been responding to treatment and whether she has acted in such a way as to sabotage the child’s change of residence. Although it would appear, from the father’s perspective, that the mother’s behaviour continues to be problematic, and I was prepared to find on 7 December 2020 that she was not approaching the new regime as she should have been, it would also seem to be true that the mother has been engaging in psychiatric therapy as ordered. She has been taking her medication and, at least in Dr C’s view, there is no ongoing evidence of a continuing Delusional Disorder. Save for the father’s most recent complaints there is little objective evidence that the child’s transition to the father’s primary care has been other than successful.
Although I accept that as recently as 1 December 2020 Dr L was of the view that the mother was still suffering from Delusional Disorder, it must also be accepted that by mid-April 2021 Dr C was prepared to say that he could no longer find any ongoing evidence of such a disorder in the mother. Nonetheless, the mother’s proposed orders indicate her preparedness to continue to undergo treatment and take her medication. It is also apparent that although issues have been identified at various times in the child’s play therapy, in late April 2021 Ms V concluded that the child has made considerable progress and that the therapy has resolved most of her presenting concerns.
Whatever be the true position in relation to the mother’s state of mind I am prepared to accept that the child is coping reasonably well with the transition to her father’s care and that, all things considered, the change of residence has been a success. Although there have been, as far as the father is concerned, certain difficulties with the mother’s interaction with the child and with him, they do not appear to have manifested in serious problems. There is no evidence that the child is performing badly at school or in her socialisation more generally, and as far as Ms V and the father are concerned, the child’s play therapy appears to have been a success.
Although I retain some concerns about the way in which the mother is interacting with the child and I take these into account, the state of the evidence, particularly the evidence of Ms V and Dr C, seems to bode well for the future if (and these conditions are critical) the mother continues to engage in her treatment regime, takes her medication, and is respectful of the father’s position as the child’s primary carer. In these circumstances I consider that while the interim orders made on 9 January 2020 may have afforded the mother too much overnight time with the child, it would not be in the best interests of the child to curtail overnight time completely in the way that the father now seeks. In my assessment the position going forward should proceed broadly along the lines proposed by the ICL, with some modifications as set out below. The burden will be on the mother to ensure that she interacts with the child in an appropriate manner and that she does not attempt to undermine the father’s position as the child’s primary carer.
First, and as I have mentioned, there is no occasion for all parenting orders to be discharged. The final orders made on 9 January 2020 remain in the terms they were made. Insofar as the child’s time with the mother is concerned, I consider that, consistently with the regime which is presently in place, the child’s interests would be better served if her time with the mother every other weekend during term time commences on Saturday morning and concludes early evening on Sunday. This would enable the child to return to the familiar environment of her home on a Friday night after a full week of school without being subject to a long drive to her mother’s home and the need to transition immediately to her mother’s care and the different parenting style which that involves. It would enable the child to recover from the stresses and strains which are inevitable at the end of the school week in a familiar environment and in the care of her father. Similarly, it would also enable the child to return to her home early Sunday evening, transition back to her father’s care, and be prepared and well rested for school the next morning. A Sunday night return to her father would obviate the need for a long car journey from her mother’s home to school on Monday morning, something which would no doubt also simplify the commencement of the school week for the child.
Both the ICL’s and the father’s proposed orders envisage the child having time with the mother after school each Wednesday night, and in these circumstances I am content to leave that existing arrangement in place. However that time should conclude at 7.00pm Wednesday evening. I consider that it would be unduly disruptive for the child and not in her best interests to spend overnight time Wednesday night with the mother, which is what the mother proposes.
Insofar as the child’s holiday time with the mother is concerned, although I accept that the blocks of time the ICL proposes are considerable, and that they would provide an opportunity for the mother to undermine the status quo should she be inclined to do so, I consider that the objective success of the child’s change of residence, together with the mother’s ongoing participation in treatment, significantly reduce the risk of this occurring. I am thus prepared to accept that it would be in the child’s best interests to spend half of school holiday time with her mother going forward. There will accordingly be orders as the ICL proposes for holiday time, and for time on special days. As the ICL also proposes, I am satisfied that it would also be in the child’s best interests for her to have the Easter weekend every other year with her mother.
Critically, the ICL’s proposed orders, as well as the mother’s and the father’s, require that the mother will continue to attend upon her treating psychiatrist for as long as he directs and continue to take her medication. Provision is also made in the ICL’s proposed orders for the mother’s treating psychiatrist to make a report to the father every six months. The mother and the father propose that this report should be every three months. I regard orders for the mother’s continuing engagement with her psychiatrist to be of fundamental importance. Were the mother to discontinue any aspect her treatment regime there could potentially be a significant effect on the feasibility of the child continuing to have overnight time with her. The requirement that she continue treatment, and that the father receive reports from her psychiatrist, will enable the father to monitor the situation in this regard and make an application to suspend time with the mother should this be appropriate. Given that both the mother and the father propose a report from the mother’s psychiatrist every three months, there will be an order to this effect.
The ICL’s order 8 providing for the mother to be at liberty to engage with the child’s school and her medical or allied health practitioners, and take the child to extra-curricular activities the child wishes to engage in while in the mother’s care, is appropriate and broadly consistent with what both the father and the mother propose in this regard. As in all matters, however, the mother will need to ensure that she is respectful of the father’s role as the child’s primary carer. However insofar as the ICL contemplates that the mother should be able to have the child receive her Catholic sacraments, this does not seem to me to be appropriate having regard to the existing order for the father to have sole parental responsibility.
As I indicated in my reasons for judgment on 7 December 2020,[33] in circumstances where the father exercises sole parental responsibility it is for him to determine matters relating to the child’s religious and cultural upbringing, subject to his obligation to consult with the mother as required by order 3 of the final orders made on 9 January 2020. Whilst it may readily be accepted that no harm could come from the child receiving her sacraments, whether or not she does so is now ultimately a matter for the father: cf Paisio & Paisio (1979) FLC 90-659. Accordingly I will not make an order permitting the mother to arrange for the child to receive her sacraments. This reasoning applies equally in relation to the father’s preference that the child not be taken to any religious event or given religious instruction by the mother unless by written agreement with him. There will be a final order preventing the mother from doing this without the father’s consent.
[33] [2020] FamCA 1143 at [20]
Notwithstanding all of this, it is to be hoped that the parties will be able to come to some accommodation in relation to the child’s participation in her mother’s Catholic faith. It is obviously important to the mother that she do so. The father has been supportive of this in the past (judging by the photographs at the child’s baptism), and for her part the mother has stated that she supports the child continuing to learn and be involved with Aboriginal cultural practices as part of the paternal family’s culture and heritage.[34] Self-evidently it is important that the child’s right to enjoy the culture of her maternal family, which has become part of her culture, be respected in a similar way by the father: see s 60B(2)(e) of the Act.
[34] Mother’s affidavit filed 24 May 2021, paragraphs 27-32
The ICL’s proposed orders 9 to 15 are all appropriate, and broadly consistent with the orders the parties seek. The principal difference lies in whether the parties should engage a parenting coordinator to assist them. The ICL and the mother propose this course, but the father does not. In all the circumstances and having regard to the time which the child will be having with the mother, I consider that the parties can only benefit from attendance at parenting coordination sessions and there will be final orders to facilitate this as well.
The orders of the Court will be as set out at the commencement of these reasons. It remains now for the parties to set aside their past differences and focus on the effective parenting of this child in their own respective spheres. It is to be hoped that they will be able to do this and that further recourse to the Court will be unnecessary.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 8 October 2021
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