RAHMAN & BAILARD (No.2)

[2019] FCCA 3737

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN & BAILARD (No.2) [2019] FCCA 3737

Catchwords:
FAMILY LAW – Interim parenting arrangements – where the child passed from the mother’s care to the father’s care following the mother’s involuntary admission and detention to a psychiatric unit – due process – where the mother does not desire to receive assistance from the Legal Aid Commission or solicitors provided by that Commission – risk to child – what harmful outcome is potentially present – where the mother raises allegations of family violence – balancing of competing allegations – what is known – safety of the child – treating the allegations as capable of successful prosecution to a point of finding – capacity of mother to care for the child – Orders made for the child to spend supervised time with the mother pending further Order – Orders made for the appointment of an Independent Children’s Lawyer – short adjournment of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.68B, 67ZBB, 60CA, 60B, 61DA, 60CC
Mental Health Act 2007 (NSW), s.22

Cases cited:

Goode& Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100
Johns & Jasapas [2016] FamCA 471
Harridge & Harridge [2010] FamCA 445
Green & Davis [2012] FamCAFC 20

Applicant: MR RAHMAN

Respondent: MS BAILARD

File Number: PAC 3609 of 2019

Judgment of: Judge Harman

Hearing date: 2 December 2019

Date of Last Submission: 2 December 2019

Delivered at: Parramatta

Delivered on: 2 December 2019

REPRESENTATION

Solicitors for the Applicant: Mr Hill

The Respondent appeared in person

ORDERS

1. Leave is granted to the legal representatives of the parties, the Independent Children’s Lawyer (if applicable) and any self-represented party; to inspect material produced pursuant to s.69ZW by the Department of Communities and Justice on 2 December 2019.

THE COURT FURTHER ORDERS THAT:

1. I dismiss the Applications in a Case filed 30 October 2019 and 7 November 2019.

2. Pending further order, Ms Bailard shall spend time with [X] born … 2016 at such times, with such frequency and for such periods as can be accommodated by the Suburb A Children’s Contact Service.

3. The parties shall, within 48 hours, contact that service to arrange to attend the first available and offered intake appointment for assessment of suitability of service and upon assessment of suitability each party shall:

   (a)Do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable that service to be engaged to provide supervised visits between Ms Bailard and [X];

   (b)Each parent shall file such directions from that service as are provided; and

   (c)Each parent shall equally meet all fees charged by the service (with the intention that each party will contribute one half of the cost of each visit).

4. Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

5. Request that the Legal Aid Commission facilitate the appointment of an Independent Children’s Lawyer with such expedition as possible and with a view to the matter being addressed as to any extant interim or interlocutory issues on 6 February 2020.

6. The matter is adjourned for further mention and directions to 9:30am 6 February 2020.

7. Request that the Suburb A Children’s Contact Centre give such expedition to the facilitation of time between [X] and his mother as can occur, noting that [X] is of an age where mid-week time is available as well as weekend time and, noting further, that [X] has until Mid-October 2019 lived predominantly with his mother and has now passed to live predominantly with his father.

8. Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.

   EXHIBIT A

APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER

1. Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child/ren the subject of these proceedings,

2. The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.

3. Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:

   (a)    Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

   (b)    Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:

   (i)Any medical reports they hold relating to the child/ren;

   (ii)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;

   (iii)Any school reports they hold for the child/ren;

   (iv)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

4. Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.

5. Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

6. Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

7. The appointment of the Independent Children’s Lawyer is made on the following bases:

   (a)    There is manifest continuing hostility between the parties to the proceedings;

   (b)    There are allegations of significant mental illness or personality disorder in relation to either party or a child, or to other persons having significant contact with the children the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child/ren;

   (c)    The child/ren is/are of tender years and require protection from conflict;

   (d)    The child/ren are suggested to be estranged from one or both parents or it is proposed that there be no communication;

   (e)    There are allegations of Family Violence and/or abuse suggested to impact upon the child/ren’s best interests.

   (f)     The child is of aboriginal descent and attention to cultural considerations is necessary.

   (g) One or both parties are or will be self-represented litigants and whilst section 102NA of the Family Law Act 1975 may apply for a Final Hearing it will not assist in the conduct of the matter.

IT IS NOTED that publication of this judgment under the pseudonym Rahman & Bailard (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3609 of 2019

MR RAHMAN

Applicant

And

MS BAILARD

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to interim care arrangements for a young child, [X], born … 2016.  [X], as would be apparent, is presently three years of age.  He will shortly turn four. 

2. The parties to the proceedings are [X]’s parents, his father, Mr Rahman, the applicant and his mother, Ms Bailard, the respondent. 

3. These reasons are given in short form pursuant to section 69ZL.

History of proceedings

1. These proceedings come before the Court today for the third occasion. 

2. The matter first came before the Court on 15 October 2019.  The application which initiated the proceedings and which created that listing had been filed on 30 July 2019.  That application sought that the parents have equal shared parental responsibility and that [X] live in a week about arrangement between his parents.  Certain other orders were sought which are not germane to this determination. 

3. Immediately prior to the first return date of the proceedings on 15 October 2019 the mother was presented, under section 22 of the Mental Health Act 2007 (NSW), to the psychiatric unit of the Hospital C.  The mother was, when the matter came before the Court on that date, a forensic patient under the Mental Health Act 2007 and detained within that unit. That may not have been known to the applicant father although he was aware the mother had been arrested.  That is how [X] came into his care.

4. Leave was granted to the father to make an oral application for orders for the child to live with the father.  The child had been placed with the father, either by police or other state officials or however the child may have come into the father’s care. 

5. Orders were made pending further order for [X] to live with his father, certain restraints pursuant to section 68B of the Family Law Act 1975 imposed to preclude the child’s removal from the father’s care by the mother as well as orders made as to the filing of a Response.  A number of other orders were made in relation to evidence gathering, particularly documents from New South Wales Police.

6. The matter returned before the Court on 12 November 2019.  On that date Ms Bailard appeared and was legally represented. The proceedings were further adjourned to today’s date.  A number of further orders were made to gather evidence.  An order was made pursuant to section 245D of the Child and Young Persons (Care and Protection) Act 1998 (NSW), using this Court’s ability, as a prescribed body under that Act, to request the information from other prescribed bodies, in this case the Hospital C where the mother had been detained as a forensic patient, (as described above).  Material was also sought from the Department of Communities and Justice, previously the Department of Family and Community Services.

7. It became apparent at the last Court event that a significant issue in this case relates to the mother’s previous admission to hospital.  The mother had produced a document to the Court, annexed to her Affidavit, which purported to be under the hand of a staff specialist and psychiatrist of that hospital.  The document purports to suggest that Ms Bailard:

   …did not display any overt psychotic systems during her stay at the mental health centre.  We did not prescribe any medications for her.

8. The balance of the brief letter is not recited. 

9. The material that is now produced does not necessarily sit comfortably with that which is asserted within that document, but I will return to that shortly. 

10. The matter, accordingly, comes before the Court today for the third occasion.  In the intervening period and on 26 November 2019 an order was made, in Chambers, releasing for inspection the material that had been produced by the Hospital C.  That material has been, in part, inspected today, at least by the father’s legal representatives.  Ms Bailard has had the opportunity to do so but has declined.

Issues for determination

1. There are a number of applications now before Court. 

2. In addition to Mr Rahman’s Initiating Application, (subsequently amended on 12 November 2019, but not substantially altering the relief sought by him, merely adding a plea with respect to FaceTime or other electronic communication) there are the following Applications:

   a)The Response of Ms Bailard filed 30 October 2019;

   b)An Application in a Case filed by Ms Bailard on 30 October 2019;

   c)A further Application in a Case filed 7 November 2019. 

3. Each of those documents consistently seeks relief which would see [X] returned to the mother’s care from whence the child had departed on or about 14 October. 

4. In the Response the mother seeks that a recovery order issue to return young [X] to her care.  [X] is described throughout as having been “abducted” from the mother.  Certain references are made to suggestedly “false AVO statements”.  Those statements would appear to relate to apprehended domestic violence proceedings commenced by New South Wales Police on behalf of, and treating as the persons in need of protection, Mr Rahman and/or his partner.  The balance of the response is not relevant at this point in time, save and except to observe that Ms Bailard sought that Mr Rahman’s time with young [X] be supervised for a period of approximately three years or until [X] was six years of age, together with a number of other restraints and prohibitions.

5. The Application in a Case 30 October 2019 seeks:

   (1)Sole custody/parental order and recoveries order (urgent)

   (2)Child support/garnishee lost payments of October/Nov [Sic]

   (3)Apprehended violence order/personal violence order, (no contact unless via writing).

6. The Application in a Case filed 7 November, 2019 seeks the issue of a Recovery Order pursuant to section 67U, presumably the Family Law Act 1975 rather than, as is referred to, legislation relating to the Australian Federal Police. 

7. I am satisfied that Mr Rahman could be under no delusion as to the orders that are sought today by Ms Bailard, that is that the child, [X], return to her care. 

8. Mr Rahman’s position is somewhat complicated in light of the Application and Amended Application filed by him.  By each of those documents Mr Rahman seeks, on both a final and interim basis, that the parents have an equal time week about arrangement with [X].  It would appear clear that is not what is sought.

9. What is agitated on behalf of Mr Rahman is that [X] would remain in his care and that [X] would spend supervised time with his mother.  It is proposed by Mr Rahman that time would be supervised by his mother, although there is no material from the paternal grandmother before the Court.  That is not to criticise that good lady, merely to observe the reality. 

Material considered

1. In dealing with the proceedings today I have read and considered each of the documents that are filed by these parties.  In Mr Rahman’s case, that has comprised his Initiating Application, the Application as amended, his Notice of Risk, the Affidavit that was initially filed by him in these proceedings 30 July, 2019 together with a Notice of Risk filed the same date. There are subsequent affidavits sworn or affirmed 12 November and 28 November respectively.  The last of those affidavits may or may not have been received, at this time, by Ms Bailard.  In Mr Rahman’s case there is also an updated Notice of Risk filed 12 November, 2019. 

2. In Ms Bailard’s case and in addition to the above applications there are a number of affidavits comprising a substantial Affidavit sworn or affirmed 4 November 2019, an Affidavit of 30 October 2019, an Affidavit of 6 November 2019 together with a Notice of Risk filed 30 October 2019.  Ms Bailard also tenders a document, Exhibit Z, which might be treated, for present purposes, as a Minute of Orders sought. 

3. There are two additional tenders of material in these proceedings:  Exhibits A and B respectively.  Exhibit A is the material from the Hospital C.  Exhibit B is material from the Department of Communities and Justice. 

4. I propose to commence by dealing with the material from Hospital C. 

5. It is advanced in Ms Bailard’s case that, whilst a period of admission occurred, that she was never a forensic patient, was not prescribed and did not take medication and was ultimately discharged without concern.  That is not an entirely accurate description of what is apparent from the records of the hospital. 

6. What is clear is that Ms Bailard was presented under section 22 Mental Health Act 2007 (NSW), having been apprehended by police following certain events that are described in that hospital material.  Those events included her suggested apprehension having carved certain Nazi symbols onto cars or, at least, one car and having become involved in an altercation with a shop keeper, whether initiated by the shop keeper or otherwise.  Ms Bailard is clear in her history, as reported on admission, that she was the victim of an assault, not otherwise.

7. At the time of admission, the hospital material observes that Ms Bailard, when first attended by a psychiatric registrar, was restrained to a bed at four points, presumably wrists and ankles, had blood covering various parts of her person, including her face and nose, which continued to bleed.  It is indicated in the notes at admission:

   Patient talking about conspiracy, refusing to talk “with anyone named D or E”.  I elicited a tangential and disordered history from patient herself in presence of CNC.

8. It is noted that at that time, in the opinion of the author of the document, that Ms Bailard was “acutely psychotic”.  The schedule issued by police and ambulance officers was upheld under the Mental Health Act 2007 and the mother was admitted to an acute mental health bed at the hospital. 

9. What transpires upon an inspection of the material as tendered is the completion of a section 22 schedule by police officers together with the completion of two section 27 Form 1 reports by registrars or other staff at the hospital. The first of those indicates that the mother, on observation, was “teary, distressed and agitated, floridly psychotic, tangential, delusional, poor rapport and an inaccurate historian”, although the basis upon which the accuracy of her history as given is suggested to be inaccurate is unclear.

10. The second Form 1 indicates that the mother required further observation and would need to stay at the hospital, it being the least restrictive environment.  The latter Form 1 is completed by a forensic psychiatrist. 

11. To the extent that the mother asserts that she was not prescribed and did not take medication, the records would suggest to the contrary.  What is suggested is that anti-psychotic medications were not seen as appropriate as the mother had disclosed pregnancy and at one point, particularly in the admission notes, it is suggested that, whilst the mother had been prescribed olanzapine, that she had refused to take medication.  Thus, consideration was being given to depot medication by injection.

12. The impression gained from examination at one point, as tagged, is that:

    Ms Bailard has got paranoid ideation and cannot give a logical or rational explanation for her beliefs.

13. At other points in the notes similar observations are made. 

14. The severity of the psychiatric incident which led to the admission and the initial presentation and subsequent admission as a forensic patient under the Mental Health Act 2007 is somewhat at odds with the description given by the mother.  That is not to suggest that her credit is impugned, far from it, merely to observe that what is recorded within those notes suggests a far more serious psychiatric event than is disclosed by the mother.  The mother, for example, is described upon police arriving as agitated, requiring restraint, banging her head, stating she was an off-duty police officer and demonstrating behaviours which, in the opinion of the presenting medical officer, were tangential and delusional and, as described, required some assistance.

15. The final mental state examination reported and, as tagged, again repeats the view that at the point of admission, 14 October, that the mother’s speech, whilst normal, was rapid and loud, presenting as floridly psychotic and suggesting that:

    a)Her son’s foreskin had been stolen for DNA use and evidence destroyed by a particular person;

    b)The Commissioner of Police had ordered the rape, molestation, torture and detaching of limbs of her son;

    c)Her limbs had also been detached many times also;

    d)Megan Merkel, the Chancellor of Germany, was to be charged with manslaughter of a New York City police officer;

    e)Gladys Berejiklian, the Premier of New South Wales, had disclosed confidential medical records of people, whoever they may be; and,

    f)There are no records recorded of births by the Registry of Births, Deaths and Marriages since 2016.

16. Importantly, it is recorded that Ms Bailard had communicated no suicidal ideation or thoughts, that having been a significant concern raised at the time that orders were made on 15 October.  That is not to suggest that the concerns were raised by Mr Rahman mischievously.  It is merely what is recorded within the notes as the mother’s self-report. 

1. The records from the Department of Communities and Justice do not take the matter any substantial distance further, save to observe that shortly prior to the psychiatric episode in October and by reference to a note 12 September 2019 that various complaints were made by the mother to departmental officers, which are to some extent consistent with Ms Bailard’s evidence that she had been assaulted by Mr Rahman, that [X] had witnessed such assaults, including severe physical assaults upon her, and that there were real concerns held by Ms Bailard with respect to inaction by police.

2. A complaint was also raised by Ms Bailard as to the paternal grandmother having some role to play in Ms Bailard having lost her previous employment. On that basis alone one would have some concern as to the imposition of supervision by the paternal grandmother as is proposed by Mr Rahman. 

3. What is clear is that since mid-October 2019 young [X] has lived with his father and has had little, if any, communication with his mother. 

4. The issue is now two-fold: whether [X] is to remain in Mr Rahman’s care and, accordingly, what time he would spend with Ms Bailard or whether the child is to return to Ms Bailard’s immediate care and, thus, what time the child would have with Mr Rahman.

5. Before turning to the specifics of those applications it is also germane to observe that Ms Bailard appears today on a self-represented basis.  Ms Bailard has raised a number of complaints, if they might be so described, regarding legal aid funding.  They are not matters that the Court need inquire into, save and except to observe that Ms Bailard has attached to her material correspondence which would otherwise be the subject of legal professional privilege, material between herself and previous lawyers. 

6. The first firm of solicitors who had applied for and obtained a grant of legal aid on behalf of Ms Bailard wrote and indicated that they were no longer undertaking legally aided work as a matter of “budget and economy”.  A referral was made to other solicitors.

7. It would seem that some instruction had been provided to the second firm of solicitors, those to whom Ms Bailard was referred, but they had written to Ms Bailard indicating, by letter 7 October, 2019, that they were no longer required by Ms Bailard to act and that Ms Bailard had collected her documents. 

8. On the last occasion the matter was before the Court, 12 November, 2019, a third solicitor appeared on behalf of Ms Bailard.  That solicitor is presently hospitalised.  Thus, to the extent that they are not present and to the extent that any complaint is raised as to that circumstance, I make clear that complaint could not be maintained. 

9. They are matters that are of some concern. However, they are not matters that would suggest that the proceedings cannot or should not advance.  Indeed, it is Ms Bailard’s application that the matter be dealt with today.  Adjournment has previously been offered, together with referral to the Family Advocacy Support Service with a view to providing some assistance today.  Ms Bailard has been clear that she does not desire to receive assistance from the Legal Aid Commission or solicitors provided by that Commission, whether in house or private.  Accordingly, the matter proceeds and I am satisfied, on those bases, that due process is afforded. 

10. There are some concerns, however, with respect to due process.  That is not to suggest that the Court engages in diagnosis of those who appear before it.  Those concerns, however, arise from the relatively recent forensic admission to Hospital C.  Whilst Ms Bailard was clearly discharged.  It is unclear whether that was into police custody or otherwise.  The notes refer consistently to a discharge into police custody at the conclusion of any admission, although it is not spelled out, in any detail, in the material whether that ultimately occurred. 

11. The records also suggest that Ms Bailard required or would benefit from ongoing treatment by way of therapy, medication or otherwise upon discharge.  There is nothing known of Ms Bailard’s present mental health.  I do not suggest that any conclusion or inference is drawn that it is other than sufficient and capable to enable the matter to proceed.  That is certainly not advanced by Ms Bailard.  It would be mischievous to assume it merely based upon a recent, past admission. 

12. At the point of discharge, hospital staff were satisfied that Ms Bailard no longer required the restrictive environment of hospital treatment.  That, of course, consistent with the Mental Health Act 2007, does not obviate against a diagnosis being maintained, merely that a less restrictive environment is available. 

13. In dealing with the matter I propose to commence with an assessment of risk. That is fundamental to the competing positions between these parties. If there is an unacceptable risk apprehended, noting the difficulties with making findings of fact as discussed by the Full Court at paragraph 68 of Goode& Goode (2006) FLC 93-286 then a more cautious approach might be adopted than would otherwise apply absent risk.

14. In light of the limited time available for dealing with the matter in a busy duty list, a problem by and of itself with a case presenting such issues of complexity as this, I propose to be guided by that which fell from Tree J in Johns & Jasapas [2016] FamCA 471 and I incorporate paragraphs 46 to 48 thereof. Therein his Honour, consistent with Murphy J’s decision in Harridge & Harridge [2010] FamCA 445, adopted five rhetorical questions to pose an answer in assessing the level of risk and whether it was unacceptable. I propose to do the same.

    The notion of unacceptable risk

    46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

    47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

    Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque(1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

    48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:^[3]

    (1) What harmful outcome is potentially present in this situation?

    (2) What is the probability of this outcome coming about?

    (3) What risks are probable in this situation in the short, medium and long term?

    (4) What are the factors that could increase or decrease the risk that is probable?

    (5) What measures are available whose deployment could mitigate the risks that are probable?

1)     What harmful outcome is potentially present in this situation?

1. At the time the matter was commenced there were serious concerns held regarding what might be broadly described as “religiosity” and “suicidality” in messages sent by the mother to the father.  Those concerns remain.  They are not ameliorated and certainly not dispelled as a consequence of the material produced by Hospital C. 

2. It must also be observed that allegations are not confined to Ms Bailard.  Ms Bailard raises serious allegations regarding family violence that she alleges she has experienced at the hands of Mr Rahman and possibly others connected with Mr Rahman, whether biologically or otherwise.

3. Those allegations are the subject of a number of the complaints already referred to, particularly regarding police action or inaction. They are not matters that the Court can inquire into at this point in time. There would be nothing to be gained from doing so as there is no material that would allow any finding to be made. Suffice to observe that Ms Bailard’s evidence is that any difficulties she has experienced in recent times and, in particular, with respect to her mental health, may well be integrated with those allegations or responsive thereto. I cannot exclude that as a possibility, nor is any finding made that it is so. However, consistent with the Full Court’s decision in Salah & Salah [2016] FamCAFC 100, I must balance those competing allegations, what is known and the safety of this child by reference thereto, treating the allegations as capable of successful prosecution to a point of finding.

4. That then returns to the question of what harmful outcome is potentially present?

5. In a case with allegations of potential self-harm and suicidality combined with religiosity and other behaviours as described in the hospital notes and Mr Rahman’s evidence, when the matter was first before the Court, the harmful outcome that is potentially present is up to and including a point of lethality, whether of Ms Bailard or the child.  That is not to suggest that they are proven facts.  It is not to suggest that it is a concern that is of such moment as to obviate against any consideration of practice of relationship.  But it is a real concern.  It cannot be discounted by reference to the material that is available, particularly that which is commissioned by the Court by using its State legislation powers, thankfully available in New South Wales, to obtain that information.

6. There is no such harmful outcome potentially present in the child remaining in the father’s care.  Certainly, there is the harmful outcome of this little boy who has, without much dispute, lived predominantly with his mother until only a few months ago, having substantial interference in his relationship and practice of relationship with his mother, but it is the lesser of two evils, as it were.

2)     What is the probability of the outcome coming about?

1. Both are equally probable. They are further compounded by a number of issues which has fallen from submissions put from the bar table. 

2. Ms Bailard has indicated, and it is no criticism of her for doing so, that she is intending, in the immediate future, as early as January next year, now only some few weeks away, to leave her present accommodation, to move to accommodation that is not yet known and possibly rural, regional or interstate. They are real concerns, not because of the potential that those realities might come about, but because if those moves occur when there is an absence of knowledge of those things and the above concerns in response to question 1 remain, the potential for great anxiety if not further proceedings arising from those circumstances, is disadvantageous to [X].  If he were retained and the mother could not be found there would be the need for further proceedings, possibly a recovery order, possibly other actions to assist in locating the child and ascertaining his safety and/or returning him to the father’s care.  All of those are matters of some importance.

3)     What risks are probable in the short, medium and long term?

1. There is a real need in this case to hasten slowly.  I am conscious that a fundamental and profound change occurred in [X]’s life in October, only two and a half months ago, when he passed from Ms Bailard’s care to Mr Rahman’s.  That was in circumstances initially instigated through events and police intervention, but ultimately as a consequence of orders made by this Court which cannot be shied away from.  The risks as identified were real and required that level of response.  The risk remains.  The risk is not substantially ameliorated by the material now available.  Ms Bailard does not, to any substantial extent, address the allegations that are raised by Mr Rahman, save and except to suggest that he has engaged in a pattern of conduct towards Ms Bailard that has either caused a descent in her mental state or which has been manufactured to seek to produce an appearance of such events.

2. But there is simply no explanation from Ms Bailard of the allegations and materials annexed to Mr Rahman’s initiating Affidavit relating to the suggested thoughts that were, at best, morbid, if not potentially signalling self-harm.  Those risks remain in the short to medium term.  Put bluntly, there is simply not sufficient evidence available at this time to discount them. 

3. The concerns that relate to [X]’s interference of practice of relationship with his mother are also real.  However, they are far more short-term issues for this child than long-term. Any harm to the child which might arise based on the allegations regarding Ms Bailard – and I again pause to make clear that I do not make that allegation with respect to the mother, merely that it is one risk that arises on the basis of the material that is before the Court, including the hospital records – is irreversible.  Repair to a damaged relationship, particularly if the matter is dealt with as expeditiously as resources will accommodate, is far more reversible.

4)     What are the factors that could increase or decrease the risks that are probable?

1. I am satisfied that supervision is required.  It is not a decision I make lightly, particularly as there is a well-known delay in the initiation of such services.  However, as discussed, for example, by Coleman J sitting as a single judge hearing appeals from judges of the Federal Magistrates Court, as it then was, in Green & Davis [2012] FamCAFC 20, there is benefit to such supervision.  If it transpires, as Ms Bailard asserts, that there is absolutely nothing to be concerned about then it may well be demonstrated, in a fairly short space of time, through the notes of that supervision.  If there are more profound difficulties they will also be revealed, one would hope.  However, that is the only factor that could decrease the risks that are apprehended at this time.

5)     What measures are available whose deployment could mitigate risks?

1. There are a number of other steps to be taken.  There are steps which cannot be compelled by the Court.  They would need to be initiated and the subject of evidence led by Ms Bailard in relation to her receipt of diagnosis and, if necessary and considered appropriate, treatment in relation to any mental disorder or illness.  If so, Ms Bailard would need to demonstrate a period of compliance and insight. 

2. The other factor that would assist is the appointment of an Independent Children’s Lawyer. In this case, Ms Bailard is now self-represented. It may be that her Legal Aid funding could be restored, but Ms Bailard has been tolerably clear today that she is no longer interested in pursuing that path. That will become problematic in due course because there is or has been an Apprehended Domestic Violence Order between these parties, it would seem each against the other. Hence, it is a matter in which section 102NA would be invoked as regards, at least, its optional bar on cross examination. There will, in due course, although it need not be addressed today, a ban imposed on the parties or any self-represented party, cross-examining each other. That will trigger the availability of legal representation for hearing, but not preparation or the ongoing conduct of the matter. As indicated, they are matters that can be dealt with on a future occasion, but need to be marked at this point in time as relevant and important.

3. Those measures would assist.  Legal representation for each of the parties would enable the Court, as it were, to “get to the truth” far more readily and far more quickly.  It will be far more difficult, particularly noting that until this morning Mr Rahman has also been self-represented.  Thus, the material before the Court, as I have already described, is of little assistance, particularly to the extent that the Amended Application, filed only three weeks ago, continued to seek a shared care arrangement when clearly nothing of the sort is intended. 

4. By reference to the above I am satisfied that there is, in this case, an unacceptable risk, which warrants and requires this Court’s protective response. So much is obligated by section 67ZBB of the Family Law Act 1975.

5. Aspects of the Court’s obligations under that section have already been engaged with.  The Court has already used its evidence-gathering powers as far as possible to obtain material when one or both parties have been self-represented and no one has issued relevant subpoena.  However, the Court must also consider whether it is necessary to make or refuse to make an order that will be protective of the child. 

6. In this case I am satisfied that the section 67ZBB obligation would support the refusal of the recovery order sought by Ms Bailard and the making of orders for supervised time. Section 67ZBB, however, is not the end of the issue.

7. The legislative provisions in Part VII must otherwise be considered, commencing with section 60CA, the paramountcy of this young lad’s best interests.

8. I must have regard to section 60B, setting out the objects and principles. I must make orders that ensure that [X]’s best interests are met by ensuring that he has the benefit of both parents having a meaningful involvement in his life to the maximum extent consistent with his best interests. The maximum extent to which involvement is consistent with [X]’s best interests is determined by reference to risk. If the risk is unacceptable, the meaningful involvement must be substantially tempered if not curtailed. In this case I am satisfied Ms Bailard’s involvement would require supervision.

9. I must ensure that [X] is protected from physical and psychological harm.  Both parents allege that it is so, albeit from very different contexts.  The greater risk, as can be identified at this point in time, that which has the potential to lead to, although it is not suggested would result in, lethality, are the allegations raised with respect to Ms Bailard. 

10. I must ensure that the child receives adequate and proper parenting.  I could not be so satisfied that [X] will when there are such questions and concerns raised with respect to the mother’s self-care and functioning at this point in time, as demonstrated by the hospital records.

11. There is also the concern that Ms Bailard’s evidence is somewhat at odds with those very records which she has earlier indicated she does not need to inspect as she knows that they support her position.  Put bluntly, they do not.  They suggest a serious mental disturbance at the time of admission, an eight-day admission as a forensic patient under the Mental Health Act 2007.  There is no evidence produced as to what referral, treatment, therapy or assistance has been sought since discharge six weeks ago. 

1. Ms Bailard’s evidence and the records for the period of admission are at odds.  It is not that medication was not required, but that it was refused.  It is not that it was a voluntary stay.   It clearly was not.  Ms Bailard was a forensic patient, having been scheduled by police and ambulance officers and then detained under section 27.  All of those matters must cause some concern as to the veracity of the assertion made by Ms Bailard that all will be well. 

2. The principles underlying the objects create rights for young [X], including a right to know and be cared for by both parents and to spend time with both.  However, those rights are subject to the caveat that they are neither enlivened nor practiced when to do so would be contrary to his best interests. 

3. I am satisfied in this case, with the evidence as it stands, highly incomplete, but causing real issues and concerns, raising red flags as it were, that a slow and cautious approach should be taken and that the lesser evil is an adjournment of some months with the appointment of an independent children’s lawyer to assist in filling the voids created by a lack of representation by one or both parties to date, although the father may now well be represented into the future.

4. All of those matters, I am satisfied, support the orders that I have already alluded to. 

5. I must then have regard to section 61DA, the presumption of equal shared parental responsibility. I am satisfied that the presumption should not apply in this case, not because findings of fact are made, but by reference to subsection (3). These are interim proceedings and I am not satisfied it would be appropriate for the presumption to apply in light of the contested evidence above and as findings might be available, in due course, with respect to one or other set of allegations, which would cause the presumption to be rebutted.

6. That being so, I need not consider equal or substantial and significant time, but will consider all time arrangements at large by reference to section 60CC.

7. Turning thereto, I must commence with the primary considerations, being the benefit to [X] of a meaningful relationship with both parents and the need to protect [X] from physical or psychological harm through exposure to abuse, neglect or family violence.  The latter is prioritised over the former by subsection (2A) and, in this case, looms large for the reasons already discussed. 

8. If young [X] has already begun to develop, as I accept he may well have, a meaningful attachment with his mother and father then it will endure the adjournment of a few months’ time, during which further inquiry can be made, evidence gathered, the independent children’s lawyer brought on board, and etcetera.

9. That will provide a greater benefit to [X] than launching into an arrangement which I could not be satisfied is appropriate.  Courts must make decisions based on available evidence, not on wishful thinking or any other basis.  The evidence that is available points to serious levels of concern.  Until they can be properly addressed only the more cautious approach is available.  That supports supervision. 

Additional considerations

Views

1. There is no evidence led as to [X]’s views.

Nature of the child’s relationship with each parent and other persons

1. Again, there is precious little evidence in this regard.  It is difficult to ascertain the extent, if any, to which Ms Bailard’s more recent psychiatric disturbance has impacted upon her relationship with [X].  It may be not at all. It may be profoundly.  That also requires address before any other arrangement would be considered. It supports supervision. 

The extent to which each parent has taken or failed to take the opportunity to participate in decision making or negatively the extent to which they have interfered in the other’s capacity to do so

1. Each suggests that this is relevant.  Each suggests that they have been highly involved in making decisions and that any deficiency has been as a consequence of the other’s behaviour or omission.  It does not assist a great deal. 

2. There is no evidence led as to maintenance of the child and the meeting of obligations in that regard. 

The likely effect of change

1. The likely effect of change is relevant.  The change that occurred in October was responsive to risk.  That risk has not, in the last two Court events and with the evidence gathered through information gathering orders made by the Court, been ameliorated.  Accordingly, it is the best that can be achieved at this time, albeit that it is inadequate, (largely because the funding of services that provide supervision is so inadequate that it is impossible to predict when time might commence).  However, it is not to put the horse before the cart.  If there is a need for supervision that need cannot be compromised merely because there is difficulty in accessing the service.  If it needs to wait then wait it will.

Practical difficulty and expense

1. This may become a very significant issue if Ms Bailard relocates to a regional area or interstate.  At this point in time, as Ms Bailard points out, the parties live very close to each other.  However, their relationship has a degree of toxicity about it.  That may well be valid and appropriate from Ms Bailard’s perspective if she has experienced violence of the level she describes.  From Mr Rahman’s perspective it is more difficult to understand how it would have become so, but his application proposing equal time, at least when the proceedings commenced, might suggest he has some greater optimism, from an acceptance of Ms Bailard’s evidence on its face, perhaps, a greater inability to understand the consequence of past behaviour.

2. Whichever is true, the parents presently have a poor ability to communicate.  Indeed, it would be contra-indicated to require it.  As Ms Bailard was clear in submissions, she would seek an arrangement where the parties have as little to do with each other, if at all, as can be achieved.  That would seem, sadly and regrettably, beneficial for [X] at this time as otherwise he would be exposed to conflict and the distress of his parents. 

3. The capacity of the parents to communicate is poor. 

4. The impact of the arrangement on the child is already considered.

Capacity of the parents

1. Whilst there are complaints as to Mr Rahman’s capacity, he does have a support network to assist him.  That support network is also the subject of criticism.  However, those criticisms pale into insignificance, to some extent, compared to the incapacity apparent in Ms Bailard’s parenting between 14 to 21 October, her admission to Hospital C. That is not to judge her for that admission. She received medical treatment for a medical issue. However, there is nothing to suggest what has occurred since, merely that it was an episode that was significant and required treatment as a forensic patient.  There is nothing that would give any comfort to any great extent that things have moved on.

Maturity, sex, lifestyle and background of young [X]

1. [X] is a very young child who requires stable and consistent care.  There is no suggestion he is not presently receiving that.  It would be preferable if he were receiving it from both parents, but on the state of the evidence, it cannot be achieved.

Aboriginality

1. Ms Bailard identifies as aboriginal.  Thus, [X] is an aboriginal child. 

2. Ms Bailard has, with some force and emotion, indicated that the current circumstances have caused great distress, not only for her, but a number of families across a number of States and communities and a significant extended family network for young [X].  I accept that may well be so, but young [X], whilst he has a right to enjoy his culture with others of that culture and whilst the Court must consider the impact of a parenting order upon that right, also has, predominantly, a right to safety.  Until such time as that can be properly assessed, and it cannot today, (meaning that it is not assessed that the child is unsafe, merely that the risk that it may be so it too high and, thus, unacceptable), nothing better can be done.

3. Attitudes to the child and the responsibilities of parenthood need not be considered at this time.  There is no evidence that would permit it.

Family violence

1. It is not to skip over the issue at all.  Ms Bailard has raised significant allegations, as has Mr Rahman and his partner.  It is simply that the allegations cannot be properly considered at this point. 

2. Mr Rahman has, at some point in the past, been found guilty, whether through plea or otherwise, of assault under section 61 of the Crimes Act 1900 (NSW). The full facts and circumstances of that assault are not presently understood. It does indicate, however, that the history as related by Ms Bailard requires further detailed exploration.

Family violence orders

1. It is probably that there are still family violence orders in force, particularly as regards Mr Rahman and his partner with Ms Bailard as the defendant.  However, they do not interfere in the orders I propose to make as there is no risk of inconsistency. 

2. For those reasons I am satisfied that orders can and should be made as follows.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  20 January 2020