Re Indira (Mental Health) - [2022] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RE INDIRA (Mental Health) [2022] ACAT 8

MH 492/2021

Catchwords: MENTAL HEALTH – application for an assessment order – former husband sought mental health assessment of former wife – suggestion that former wife posed a threat of harm to herself and to their daughter – related custody proceedings in the Family Court – statutory requirements for making an assessment order – matters about which the Tribunal must be satisfied – conditions not made out – no assessment order made

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26, 39
Mental Health Act 2015 ss 9, 10, 11, 34, 37, 38, 40, 194

Cases cited:George v Rockett (1990) 170 CLR 104
In the matter of ED [2017] ACAT 84
McKinnon v Secretary, Department of Treasury [2006] HCA 45

Tribunal:President G Neate AM
Senior Member D Byrne

Date of Orders:  4 February 2022
Date of Reasons for Decision:      4 February 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MH 492/2021

BETWEEN:

RE INDIRA

TRIBUNAL:President G Neate AM
Senior Member D Byrne

DATE:4 February 2022

ORDER

The Tribunal orders that:

The application lodged on 20 December 2021 for an assessment order under section 37 of the Mental Health Act 2015 is dismissed.

………………………………..
President G Neate AM

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

This case concerns an application under section 34 of the Mental Health Act 2015 (MH Act) for an assessment order under section 37 of the MH Act.
The applicant (the father) is the former husband of the woman in respect of whom the assessment order is sought (the mother).
It appears that the application is linked to proceedings currently before the Federal Circuit and Family Court of Australia (the Family Court) in relation to the custody of the child of the father and the mother (the daughter). Although the ACT Civil and Administrative Tribunal (the Tribunal) is aware of those proceedings and has considered some affidavit and other written material prepared in relation to those proceedings, the Tribunal must decide the application for the assessment order by reference to the requirements of the MH Act.
Because of the operation of section 194 of the MH Act and section 39 of the ACT Civil andAdministrative Tribunal Act 2008 (the ACAT Act), the hearing of the application was conducted in private. These reasons for decision do not name any of the parties[1] or other people who attended the hearing, or who produced, or are referred to in, documents considered by the Tribunal in preparing these reasons for decision.

Application for assessment order

[1] The name used in the title of these proceedings is not the name of the mother.

On 20 December 2021, the father lodged with the Tribunal his application for an assessment order in relation to the mother. The completed application form is 16 pages long. It contains information about, and the father’s concerns in relation to, various matters. In summary, the application states that:
(a)the mother was diagnosed with a “serious mental disorder” in June 2017 (with “Psychosis, Bipolar and schizophrenia symptoms”), and she is on “mandatory[2] life long medication Risperidone with necessary therapy as required”;
(b)there is a risk to the mother’s health or safety because “the highest risk noted in the world for this illness is ‘killing the child and committing suicide’”;
(c)“Due to the symptoms of hallucination and uncontrollable rush of emotions the child can be harmed with many other long terms harm for the child”;
(d)“This has to be an urgent matter due to the child now living [with] her”.
[2] As treatment of psychiatric patients is usually voluntary, and since treatment can be varied from time to time, any single anti-psychotic medication such as Risperidone would not be considered mandatory.
It appears from the application and from his subsequent document dated 25 January 2022, as well as oral statements to the Tribunal, that the father applied for the assessment order because, in his opinion, the mother and the daughter are substantially at risk. He asserted that he came to that conclusion because:
(a)of a mental disorder first diagnosed by the Crisis Assessment and Treatment Team (CATT) in Melbourne and by a psychiatrist there (the Victorian Psychiatrist) in May 2017;
(b)he heard the mother use the words “bipolar” and “psychosis” and he saw her taking Risperidone daily;
(c)he observed symptoms of the illness in May 2017 which included paranoia, disordered thought and speech, being aggressive, shouting, harming the child, being depressed, aloof, emotionally insensitive/not available, and showing fear;
(d)the mother has been avoiding psychiatric treatment since October 2018;
(e)since September 2020, the mother stopped consulting her psychiatrist in India and only met a general practitioner in the ACT;
(f)since September 2020, the mother became “very aggressive” due to stopping the medication;
(g)in July 2021, the mother stopped taking medication and started appearing in his bedroom at 1:00am saying that some people were attacking her.
In the father’s opinion, the “main issue” is that the mother is “unaware of her problems, illness, symptoms, and how this is troubling for the child and the people with whom she lives.” Accordingly, the father is seeking an assessment order for a “thorough check up for bipolar, psychosis and schizophrenia spectrum of issues” as, in his view, this will not do any harm but will only help the mother and the daughter.
The father stated in some of his documentation that, without the assistance of a local psychiatrist, he has had difficulty communicating with some courts, the police and government agencies about the mother’s mental illness and the possible harm this could do to others. He sought to rely on his accounts of conversations with various medical practitioners in India and Australia who provided treatment or counselling to the mother in recent years. However, he does not have medical reports from most of them which might confirm, expand on and explain the basis of their professional opinions (as reported by the father) in relation to the mother’s mental condition and the implications of that for herself and her daughter.
The father explained to the Tribunal, orally and in writing, that he is the only family member (other than the daughter) related to the mother in Australia. Given that he and the mother are divorced, they are living apart and he is the subject of a Family Violence Order arising from the conduct toward the mother, he has no contact with the mother and is unlikely to have any ongoing contact with her into the future. Consequently, he is concerned that the mother (and potentially the daughter) will be on their own and without appropriate and supervised ongoing medical treatment. That lack of ongoing treatment, he says, could operate to the disadvantage of the mother or the child or both of them. Accordingly, he is seeking information that might arise from a psychiatric assessment of the mother which could be handed to relevant ACT authorities so that a medical team could take over the case and follow-up with the mother.
Even if the Tribunal accepts that the father was motivated to bring the application for an assessment order for the reasons outlined above (and irrespective of the separate proceedings in the Family Court), the Tribunal cannot exercise its power under the MH Act to make such an order unless we are satisfied that the statutory conditions for making it are met. That process involves considering whether the evidence available to the Tribunal lends support to the assertions made, and the conclusions reached, by the father.

Hearing

The Tribunal heard submissions in relation to the application on Monday, 31 January 2022. The hearing was conducted by telephone. The father, the mother, and an officer of the Public Advocate participated from different locations.
The hearing proceeded in two stages, from 9:00am for approximately half an hour and then from 3:20pm for approximately two hours.
The hearing proceeded with relatively little formality. The Tribunal and the Public Advocate asked questions of the father and the mother, but no one was sworn as a witness.
The Tribunal considered the following documents provided by the father and documents provided by the mother without requiring that those documents be proved in any way or marked as exhibits.
Documents provided by the father
(a)Application by the father for an Assessment order, lodged on 20 December 2021 (16 pages, not numbered).
(b)Affidavit of the father dated 12 January 2022 for Family Court proceedings, including annexed screen shot (1 page) and report of a medical practitioner in India (the Indian medical practitioner) dated 12 January 2022 (1 page) – (total 8 pages).
(c)Document attached to an email from the father to the Tribunal on 13 January 2022 – 12 pages comprising statement (4 pages), report from the mother’s general practitioner (GP) who practices in a Canberra medical centre dated 12 January 2022, and screenshots of the mother’s communications (said to be with the Indian medical practitioner) between 17 May and 17 October 2020.
(d)Order dated 13 January 2022 made by the Family Court.
(e)Subpoena dated 17 January 2022 in relation to Family Court proceedings directed to the mother’s treating psychiatrist in Victoria (the Victorian psychiatrist).
(f)Email dated 15 May 2017 from the father to a person in Footscray Victoria, “Re: Updates on the events after and before Friday 12 May 2017 when we spoke”
(g)Statement to the Tribunal by the father dated 25 January 2022 (4 pages, 23 paragraphs).
Documents provided by the mother
(a)Affidavit of the mother dated 12 January 2022 in relation to Family Court proceedings (12 pages) with attached report of the mother’s GP dated 12 January 2022 (2 pages)
(b)Letter from a registered psychologist in the ACT who is treating the mother (the Canberra psychologist) (2 pages, undated but refers to consultations between 4 September 2021 and 15 January 2022).
The Tribunal ensured that the father and the mother each had a complete set of those documents.
The procedures in relation to this hearing were adopted by the Tribunal having regard to the limited time available for the hearing of this application, and the fact that the proceedings were conducted by telephone. The procedures were consistent with sections of the ACAT Act which provide that:
(a)in exercising its functions under the ACAT Act, the Tribunal must ensure that its procedures are as simple, quick, inexpensive, and informal as is consistent with achieving justice;[3]
(b)the Tribunal must observe natural justice and procedural fairness;[4]
(c)the Tribunal need not comply with the rules of evidence applying in the ACT;[5]
(d)the Tribunal may inform itself in any way it considers appropriate in the circumstance (noting that it must observe natural justice and procedural fairness).[6]

Legislative provisions under which an assessment order may be made

[3] ACAT Act section 7(a), see also section 27 about procedures in authorising laws
[4] ACAT Act section 7(b)
[5] ACAT Act section 8
[6] ACAT Act section 26

As noted earlier, the application for an assessment order has to be decided under particular sections of the MH Act. That Act contains sections in relation to the making and consideration of an application, as well as the Tribunal’s power to make an assessment order and the contents of any such order.
Section 34 of the MH Act permits a person such as the father to make an application for an assessment order. It provides:
34Applications by other people—assessment order
(1)This section applies if a person (the applicant) believes on reasonable grounds that—
(a) the health or safety of another person (the subject person) is, or is likely to be, substantially at risk because the subject person is unable, because of mental disorder or mental illness—
(i)to make reasonable judgments about matters relating to the subject person’s health or safety; or
(ii)to do something necessary for the subject person’s health or safety; or
(b) another person (the subject person) is doing, or is likely to do, because of mental disorder or mental illness, serious harm to others.
(2)The applicant may apply to the ACAT for an assessment order in relation to the subject person.
Note 1 Requirements for applications to the ACAT are set out in the ACT Civil and Administrative Tribunal Act 2008, s 10.
Note 2 If a form is approved under the ACT Civil and Administrative Tribunal Act 2008, s 117 for the application, the form must be used.
The application form and other material provided to the Tribunal by the father shows that his application was made:
(a)pursuant to section 34(1)(a) because the father believes that the mother’s health or safety is likely to be substantially at risk (including from potential suicide) because of her claimed mental disorder or mental illness; and
(b)pursuant to section 34(1)(b) because the father believes that, because of her claimed mental disorder or mental illness, the mother is likely to do serious harm to the daughter.
Section 38 of the MH Act deals with giving a person who is the subject of an application for an assessment order an opportunity to put their point of view to the Tribunal. It provides:
38Consent for assessment order
(1)If the ACAT is considering ordering an assessment of a person under section 37 (a), (b) or (c), the ACAT must take reasonable steps to—
(a)     tell the person in writing that—
(i)the ACAT is considering ordering an assessment; and
(ii)an assessment may lead to an order for treatment; and
(iii)if an order for treatment is made at a later time the person’s rights in relation to treatment will be explained to the person at that time; and
(b)     find out the person’s opinion in relation to the assessment; and
(c)     obtain the person’s consent to the assessment.
(2)However, subsection (1) does not prevent the ACAT from ordering an assessment without the person’s consent.
The mother was advised in writing of the application for an assessment order and she participated in the hearing of the application. In response to questions from the Tribunal, the mother made it clear that:
(a)she considered that the assessment was unnecessary[7]; and
(b)she opposed the making of an assessment order.[8]
[7] MH Act section 38(1)(b)
[8] MH Act section 38(1)(c)
Section 37 of the MH Act confers power on the Tribunal to make an assessment order. The relevant part of that section for these proceedings provides:
37Assessment order
(1)The ACAT may order an assessment of a person if—
(a) an application for an assessment order is made under part 4.1 and the ACAT is satisfied on the face of the application that—
(i)the person appears to have a mental disorder or mental illness; and
(ii)either—
(A)the person’s health or safety is, or is likely to be, substantially at risk; or
(B)the person is doing, or is likely to do, serious harm to others; or …
For present purposes, it is appropriate to make the following observations about that part of section 37:
(a)the Tribunal’s power to make an assessment order is discretionary, given that section 37(1) provides that the Tribunal “may” order an assessment if specified conditions are satisfied;
(b)one of those conditions is that an application for an assessment order has been made under part 4.1 of the MH Act;
(c)the other conditions are that the Tribunal is satisfied “on the face of the application” that:
(i)      the person about whom the application for an assessment order is made “appears to have a mental disorder or mental illness”; and
(ii)     that person’s health or safety is, or is likely to be, substantially at risk; or
(iii)   that person is doing, or is likely to do, serious harm to others.
The terms ‘mental disorder’ and ‘mental illness’ are defined in sections 9 and 10 of the MH Act respectively:
Meaning of mental disorder
In this Act:
mental disorder—
(a)means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion; but
(b)does not include a condition that is a mental illness.
Meaning of mental illness
In this Act:
mental illness means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in 1 or more areas of thought, mood, volition, perception, orientation or memory, and is characterised by—
(a)the presence of at least 1 of the following symptoms:
(i)      delusions;
(ii)     hallucinations;
(iii)   serious disorders of streams of thought;
(iv)    serious disorders of thought form;
(v)     serious disturbance of mood; or
(b)sustained or repeated irrational behaviour that may be taken to indicate the presence of at least 1 of the symptoms mentioned in paragraph (a).
For completeness, having regard to some of the contested evidence about spiritual and other practices said to be undertaken by the father or the mother, we note that section 11 of the MH Act provides, among other things:
11People not to be regarded as having mental disorder or mental illness
For this Act, a person is not to be regarded as having a mental disorder or mental illness only because of any of the following:
…
(b)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular religious opinion or belief;
(c)the person expresses or refuses or fails to express, or has expressed or has refused or failed to express, a particular philosophy;
…
(f)the person engages in or refuses or fails to engage in, or has engaged in or has refused or failed to engage in, a particular religious activity;…
Before considering whether to exercise the discretionary power conferred on the Tribunal by section 37 of the MH Act, we make two observations.
First, the Tribunal may make an assessment order if the application for an assessment order “is made under part 4.1” of the MH Act, which comprises sections 33 to 36. The present application was made under section 34. That section is quoted at [18] above.
Because section 34 applies if the applicant “believes on reasonable grounds” that certain circumstances exist or are likely to exist, the Tribunal may make an assessment order only if the applicant satisfies that condition. In other words, before the jurisdiction of the Tribunal to make an assessment order is attracted, it needs to be satisfied that the applicant “believes on reasonable grounds” that the circumstances in section 34(1)(a) or (b) exist or are likely to exist.
A differently constituted Tribunal has considered the operation of similar wording in section 80(2) of the MH Act. That section provides that a doctor or mental health officer may apprehend a person and take the person to an approved mental health facility if the doctor or mental health officer “believes on reasonable grounds that” the person has a mental disorder or mental illness and that other conditions listed in that section are satisfied. In In the matter of ED,[9] that Tribunal described the requirement (that the doctor who authorised that detention believes on reasonable grounds that the person had a mental disorder or mental illness) as a “precondition” for a person’s detention under section 85.
[9] In the matter of ED [2017] ACAT 84 at [22]
That Tribunal described the requirement as an objective test. In other words, the test is not whether the doctor asserts that he or she had reasonable grounds for believing the factual circumstances listed in the section existed. Rather, whether there are reasonable grounds for the doctor’s belief must be approached objectively from the viewpoint of a reasonable decision-maker.[10] That Tribunal quoted from the judgment of the High Court of Australia in George v Rockett to the effect that where a statute prescribes that there must be “reasonable grounds” for a state of mind, it requires “the existence of facts which are sufficient to induce that state of mind in a reasonable person.”[11]
[10] In the matter of ED [2017] ACAT 84 at [24]
[11] George v Rockett (1990) 170 CLR 104 at [8]

It is apparent from George v Rockett and other judgments that[12] the requirement is designed to preclude the arbitrary exercise of many statutory powers.
[12] For example, McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [10]-[12]
There is a question in this case about whether the requirement in section 34 should be construed as strictly as the same requirement in section 80 of the MH Act. Unlike in section 80, the person who makes an application under section 34 of the MH Act is not exercising a power in relation to another person. By contrast with section 80 (where a person can be detained involuntarily because a doctor believes on reasonable grounds that they have a mental illness and that other criteria are satisfied), an applicant under section 34 has no power in relation to the other person. Rather, the applicant is asking the Tribunal to exercise its discretionary power to make an assessment order in respect of another person.
This issue of what is required before a valid application can be made under section 34 was not raised in the hearing of the present application. Consequently, the Tribunal does not have the benefit of any legal argument about the interpretation of the expression “believes on reasonable grounds” in that section of the MH Act. However, the Tribunal proceeds on the basis that, while the test remains an objective one, the level of proof required to establish the validity of the application is not as high as the standard required where a person who holds that belief can exercise real power (e.g. to detain someone involuntarily) in relation to another person or persons.
It is not necessary that the Tribunal shares the belief of the applicant. The Tribunal needs only to be satisfied that there are reasonable grounds for the applicant’s belief.
In the present application for an assessment order, the father set out in detail his direct observations of what the mother said and did, and his recollections of conversations with various medical practitioners about the mother’s mental state and the possible implications of that for herself and others. We have concluded that, at the time the father made the application, there was sufficient information to induce the belief in a reasonable person that the criteria in section 34 were met. Accordingly, the Tribunal proceeded on the basis that the application was validly made under section 34 of the MH Act and hence the jurisdiction of the Tribunal to decide whether to make the assessment order was attracted.
Second, when deciding whether to make an assessment order, the Tribunal could have confined itself to the “face of the application”. We are not required to be so confined and, in this case, we had regard to a range of other documentary and oral material referred to earlier in these reasons for decision (which does not include any report from the Victorian psychiatrist or reports from most of the medical and other health practitioners in India who provided treatment to the mother).
In summary, the Tribunal’s role in relation to the present application for an assessment order is to decide whether it is satisfied that:
(a)the mother appears to have a mental disorder or mental illness; and
(b)the mother’s health or safety is, or is likely to be, substantially at risk; or
(c)the mother is doing, or is likely to do, serious harm to the daughter.
Before moving to consider whether the statutory requirements for making the assessment order have been met, it is appropriate to set out briefly the background to, and context of, the father making the application for an assessment order.

Background to the application

The following chronology and other information is drawn from documents provided to the Tribunal by the father and the mother, as supplemented or clarified to some extent in their oral statements to the Tribunal.
The father and the mother are both from India. They entered into an arranged marriage on 1 May 2008. Each was approximately 31 years of age at the time. They moved to Australia, and lived in Victoria. On 1 August 2011, their daughter was born.
In 2015, the father and the mother separated. The mother took out an Intervention Order (IVO) against the father. In about November 2016, the father and the mother were divorced.
It appears that in or around May 2017, the mother experienced a psychiatric event. From June 2017 she was managed by the CATT in Melbourne. She received some treatment from the Victorian psychiatrist, in 2017. The mother told the Tribunal that she thought that she consulted the Victorian psychiatrist on approximately four or five occasions. She commenced taking daily doses of Risperidone, an antipsychotic medication.
The mother’s mother came from India to Australia to assist her with the care of her daughter. Apparently, the mother’s mother experienced some difficulties in Australia, including language difficulties, and in July 2017 the mother and her mother travelled to India so that the mother could receive treatment. The daughter remained in Australia and was cared for by the father.
The mother was treated in India by an Indian psychiatrist (the Indian psychiatrist) (until July 2020), and she received therapy from an Indian psychologist (the Indian psychologist).
In October 2018, the father and the daughter moved from Victoria to Canberra for the father’s work. The mother returned to Australia and went to Canberra where, although divorced from him, she lived with the father and the daughter in a room for which she paid rent to the father. It is clear that the relationship between the parents was strained and there are various allegations that the mother was subjected to violence by the father during that period. The father states that the mother exhibited behaviours and said things which caused him concern about her mental state.
In February 2019, the mother started attending a local medical centre and was treated by her GP, who she has seen on approximately seven occasions each year since then.
On 27 November 2021, the mother and the daughter moved out of the father’s house and moved into private rented residential accommodation where they remain. The mother immediately took out a Family Violence Order against the father.
The father and the mother are in full-time employment. The mother’s present employment commenced in 2019 and she has remained in continuous employment since then.
The father has commenced proceedings in the Family Court in relation to custody of the daughter.
On 20 December 2021, the father lodged his application for an assessment order with the Tribunal.

Evidence about whether the mother appears to have a mental disorder or mental illness

The first issue is whether the Tribunal is satisfied that the mother appears to have a ‘mental disorder’ or ‘mental illness’ as defined in the MH Act (see paragraph [24]). In order to be so satisfied, the Tribunal looked primarily at the clinical evidence available to it as well as the observations made by the father during the years that he and the mother lived together (both before and after their separation and divorce).
Of the documents before the Tribunal (see paragraph [14]) those that could be described as clinical evidence were:
(a)A report of the Indian medical practitioner dated 12 January 2022 (1 page).
(b)A report from the mother’s GP dated 12 January 2022 (2 pages).
(c)A letter from the Canberra psychologist, undated (2 pages).
The father also provided detailed documentation in narrative form based on his recollections which included:
(a)his observations of the behaviour of the mother;
(b)his understanding of the conclusions reached by some medical practitioners; and
(c)his own assessment of the mother’s mental state (which assessment appears to be based on, and quotes from, publicly available extracts from one or more medical texts).
Although the father’s direct observations of the mother assisted the Tribunal, his recollections of what other medical practitioners might have said were at best hearsay and, in the absence of direct documentation from those practitioners, could be given little weight. The father’s analysis of the mother’s behaviour by reference to publicly available documents about particular forms of mental illness cannot be given any weight. He is not, and did not purport to be, a medical practitioner. Although his researching of mental health matters is understandable, his lay analysis of the mother’s mental health did not assist the Tribunal.
We now consider the clinical evidence that was available to the Tribunal on the day of the hearing, about whether the mother appears to have a mental disorder or mental illness.
In his documentation, the father asserts that the mother continues to suffer from a psychotic condition, the origins of which are alluded to but remain unclear from any of the documents submitted. It appears that a number of psychiatric labels including “bipolar”, “psychosis”, “paranoia”, “anxiety” and “depression” have been noted by various health professionals as applying to the mother.
The Tribunal does not have any document containing a diagnosis from the period of treatment in 2017. However, it appears that the mother commenced taking Risperidone, an antipsychotic medication, at that time.
Intervention by her mother resulted in the mother relocating to India for treatment, and this was provided by the Indian psychiatrist and the Indian psychologist. The Indian psychiatrist first applied the diagnostic label “psychosis” or “psychotic” and prescribed the anti-psychotic medication Risperidone. The mother has been using this medication at various times since then. Between May 2020 and September 2020, the mother consulted the Indian medical practitioner, a medically qualified counsellor in India, at the request of the father. These consultations were conducted entirely online. The Indian medical practitioner applied the diagnosis “psychotic disorder” and continued treatment with Risperidone.
On her return from India in 2018, the mother relocated from Victoria to Canberra to be close to her daughter who had by then moved to Canberra with the father. The mother commenced a professional relationship with the GP who works in Kambah. The mother continues with this professional relationship. In a report to the mother’s legal representatives dated 12 January 2022, the GP proffers the diagnosis “psychotic secondary to the relationship problem and domestic violence”. Treatment with Risperidone continues, and the GP notes the mother’s compliance with this medication.
In his application to the Tribunal for an assessment order, the father reports a profile of behaviours which he has observed over time in the mother, including hallucinations, paranoid ideation, loss of emotional control, serious emotional outbursts, thought disorder and anger leading to aggression and violence. The father believes that the mother has, for reasons unspecified, developed irremediable brain damage. He also asserts that the prescription of Risperidone by several medical practitioners (including the mother’s current general practitioner) is evidence of an ongoing and also irremediable mental illness.
In her affidavit, the mother reports a history of domestic violence (including physical violence leading to injuries requiring medical attention), enforced and unwelcome sexual activity, excessive control by the father of the mother’s financial affairs, pressure to relinquish the mother’s friendships and other contacts which did not have the father’s approval, threats to self-esteem and to independence, continuing criticism of the mother’s parenting and other domestic activities, continuing assertions of the father’s right to control and to be obeyed, and threats to remove the daughter from the mother’s care and influence. The mother reports that this family situation eventually led to a formal separation. It also triggered in her serious symptoms of both anxiety and depression which, in her view, ultimately led to her psychiatric history and to the various psychiatric diagnoses which she has been given over time.
The mother’s current psychological state is probably best summarised by an undated report from the Canberra psychologist, who provided psychological treatment to the mother, on referral from the GP, between 4 September 2021 and 15 January 2022. The Canberra psychologist notes that the mother’s primary presenting problems were with anxiety and depression secondary to a history of marital difficulties with her ex-husband (the father). The Canberra psychologist also notes that the mother is progressing very well with psychotherapy and her mental state is currently one of “… peace… happiness and freedom”. The mother is compliant with medication since leaving the father’s home with her daughter, and the Canberra psychologist believes that medication may be discontinued at some stage. The Canberra psychologist has observed the mother’s interaction with her daughter (by Zoom) and that she appears to be a “very calm and nurturing mother”.
The clinical evidence is consistent with the mother’s description of her condition and its treatment. In her affidavit of 12 January 2022, the mother referred to her mental health and alleged that the father had told others that she was mentally ill. She noted that she received counselling and support from the CATT in 2017 before being referred to a psychologist for a further report and a few sessions. The mother stated that she was not aware of any formal diagnosis being made at that time, but she was prescribed Risperidone “to assist with my mental health which I took as prescribed.” She recorded that when she resided in India, she engaged with mental health and well-being practitioners “who assisted me with my mental health.”
The mother noted that she ceased taking Risperidone within weeks of returning to Australia (because, she asserted, the father stopped her taking it) and she experienced side-effects as a consequence. She was able to arrange an urgent appointment with her GP who put her back on her medication which she has taken as prescribed since then. She has continued to engage with her GP every few months in relation to her medication and general well-being. She concluded her affidavit by stating:
I take my medication as prescribed and adhere to all treatment and medication recommendations made by my treating practitioners. I believe that my mental health is stable and appropriately managed and treated.
In summary, it is clear that the father and the mother disagree completely about her current situation. The father asserts that the mother continues to be psychiatrically seriously disturbed and this, in his view, makes her an unfit parent for her daughter. The mother asserts that, rather than having an ongoing psychotic illness emerging from unknown factors, her historical psychiatric condition, which she does not deny, is the direct result of long-term domestic violence and of a marital situation embodying relentless psychological stress and pressure from the father.
Nowhere in the evidence before the Tribunal is there a formal medically substantiated diagnostic profile of the mother’s asserted psychotic illness. Reports by both the GP and the Canberra psychologist, however, point to the view that the mother is currently psychiatrically stable, compliant with medication and with psychotherapy appointments, and providing a safe and caring environment for her daughter.
Having regard to the evidence as a whole, the Tribunal is satisfied that the mother appears to have a mental illness which requires ongoing observation and treatment adjusted to her circumstances from time to time.
On that basis, the Tribunal needs to consider whether we are satisfied that:
(a)the mother’s health or safety is, or is likely to be, substantially at risk; or
(b)the mother is doing, or is likely to do, serious harm to others.

Evidence about whether the mother’s health or safety is, or is likely to be, substantially at risk

As noted earlier, the father’s application for an assessment order included statements to the effect that:
(a)the mother was diagnosed with a “serious mental disorder” in June 2017 (with “psychosis, bipolar and schizophrenia symptoms”), and she is on “mandatory lifelong medication Risperidone with necessary therapy as required”;
(b)there is a risk to the mother’s health or safety because “the highest risk noted in the world for this illness is ‘killing the child and committing suicide’.
The arguments which the father advanced in his application seem to have proceeded on the basis that:
(a)the mother was prescribed Risperidone in 2017 and since;
(b)Risperidone is used to treat severe symptoms of significant mental illness;
(c)therefore, the mother has, and has been diagnosed with, a severe and lifelong mental illness; and
(d)the mother is a risk to herself.
In the course of that reasoning, the father seems to have identified the most severe forms of mental illness and its consequences, apparently on the basis of published information and often without direct observations or qualified clinical opinion to support his reasoning.
The father quoted information about Risperidone (including the conditions and behaviours it is used to treat) and he listed the symptoms of schizophrenia. He then concluded that prescribing Risperidone “for life long as mandatory medication points to the fact that the diagnosis is psychosis + schizophrenia+ BiPolar.” The changes in dosage prescribed for the mother also “points to the diagnosis as psychosis + schizophrenia + BiPolar.” He then stated that he would “rule out other possibilities” for which the medication is used (namely dementia and autism) as he had “not heard those while discussing with psychologist, psychiatrist, or family member.”
The father also repeated the assertion that this medication is “lifelong” and “mandatory” and stated that the “illness is a permanent disability as far as I know and without treatment, this can go out of control and the tablet may not be able to contain the issue.”
In summary, the father described the mother’s “illness” as “one of the severe mental disorders which requires lifelong mandatory medication with the symptom which itself will make [the mother] stop this mandatory Risperidone medication.”
The father also asserted that:
(a)the mother “doesn’t have the capability of making decisions which is one of the symptoms of her illness”;
(b)“These patients also lack insight into what is happening with themselves which make anyone living with them extremely complex”;
(c)during the manic phase of her mental illness, the mother shows “unrealistic power and energy” then she goes into a “depressed state where she feels helpless, and someone is trying to harm her or she has done something really wrong”;
(d)behaviour and character issues are “part of the root cause of major and permanent damage to her brain over mainly [many?] years, which is now contained by Risperidone”;
(e)the “mental illness with brain damage, self-created threats and fear with hallucinations makes it impossible for anyone to engage in meaningful discussions with” the mother.
As noted earlier, many of the statements used to support these conclusions appear to have been drawn from publicly available medical information about the medication and forms of mental illness, and the father has extrapolated from them to draw his own conclusions. Nothing in the other material provided to the Tribunal suggests, for example, that the mother has “brain-damage”.
According to the father, he contacted the mother’s Indian psychologist and asked about “the highest risk of the child being with the mother alone.” The father reported that the Indian psychologist replied that “there are cases where the patients killed the children and committed suicide.” It is clear from the father’s statements that his apprehension is based on extreme cases. There is no material before the Tribunal to suggest that the mother’s condition puts her, or anyone else, at such substantial risk.

In other passages in his application, the father expressed more moderate and evidence-based contentions. For example, in relation to the mother’s employment, he asserted that the mother cannot finish in normal working eight hours “due to her disability (illness)” but also suggested that through her work, the mother gains self-confidence. He also stated that during one difficult period in the relationship (apparently in 2021) he noticed that the mother went to work every day and “did not miss a single day during that episode.”
As noted above, the written material from the mother, in the form of an affidavit for the Family Court proceedings, records that she acknowledges that she needs assistance with her mental health, she takes her medication as prescribed, she adheres to all treatment and medication recommendations made by her treating practitioners, and believes that her mental health is stable and appropriately managed and treated.
There is no formally documented medical evidence before the Tribunal which provides a diagnosis of a specific type or types of mental illness which would normally result in self-harm. The Indian medical practitioner’s report refers to a diagnosis of “psychotic disorder (psychosis) with covert narcissistic tendencies” (which, it seems, is a reference to a diagnosis made by a different medical practitioner). Although the report refers to a psychiatrist’s recommendation that the mother have life long treatment with medication, counselling and psychotherapeutic support, the report does not suggest that the mother’s health or safety is substantially at risk.
We recognise that the Tribunal does not have all the relevant medical opinions. In particular, the Tribunal was not provided with a report from the Victorian psychiatrist which, we understand, has been subpoenaed for the purpose of the Family Court proceedings. Consequently, we are unaware of the diagnosis (if any) made by him in 2017.
However, even if the Victorian psychiatrist made a diagnosis of a particular mental illness in 2017, that diagnosis might not be made now and it would not necessarily mean that the mother’s health or safety is likely to be substantially at risk now. Further, there is no evidence before the Tribunal that the mother is likely to do serious harm to herself, either as a consequence of a mental illness or for any other reason.
The reports of medical practitioners who have had regular consultations with the mother in recent years do not refer to suicidal ideation or any attempts at self-harm. At most they refer to “symptoms of anxiety and depression due to her living circumstances” (when she was residing with the father) and to her having had “depression and anxiety as a result of her marital problems and domestic violence she suffered” along with hypertension.
They also provided a generally positive assessment of the mother’s current condition.
(a)According to her GP, the mother is very compliant with all her medication, she is getting counselling from him and is receiving psychotherapy, she does not need any other treatment, and “feels very happy, peaceful and settled” since living separately and having her daughter with her. Her mental state is “very stable.”
(b)According to the Canberra psychologist, the mother has shown “strength and perseverance” to take positive action in difficult circumstances “which indicates stable mental health” and she has been able to overcome anxiety and depression in order to prioritise the best interests of the child. She is “always engaged, insightful and self-reflective.”
During the telephone hearing of the application for the assessment order, the mother intervened from time to time and answered questions from the Tribunal. On each occasion she was careful, measured and calm in her presentation and made coherent and considered statements which were directly responsive to what was being asked or said by others.
Having considered the evidence as a whole, the Tribunal is not satisfied that the mother’s health or safety is, or is likely to be, substantially at risk.

Evidence about any risk that the mother will do serious harm to the daughter

Again, as noted earlier, the father’s application for an assessment order included statements to the effect that:
(a)the mother was diagnosed with a “serious mental disorder” in June 2017;
(b)there is a risk to the mother’s health or safety because “the highest risk noted in the world for this illness is ‘killing the child and committing suicide’”;
(c)“Due to the symptoms of hallucination and uncontrollable rush of emotions the child can be harmed with many other long terms harm for the child”;
(d)“This has to be an urgent matter due to the child now living [with] her”.
In his application, the father recounted incidents in 2017 where the mother’s disturbed mental condition led to the daughter feeling threatened, fearful, and otherwise insecure. The daughter was also exposed to disputes between other family members. Yet in 2018, after her time in India and while receiving treatment, support and medication, the mother had positive interactions with the daughter.
The father stated that the daughter felt “helpless, trapped and controlled by mentally unstable and insecure adult” at times with her mother, and that the daughter “experience psychological harm, fear and neglect.” He also suggested that “poverty and financial risks are very high” if the daughter stays with the mother, along with “the danger of deaths.”
Again, it appears that the father’s research has led him to describe a worst-case scenario in relation to the mother’s illness and the implications of that for the daughter. The father listed “all the possible risks” involved when a child lives with a person who is “suffering from a serious mental disorder BiPolar + psychosis + schizophrenia illness with severe uncontrollable aggression, hallucinations with self-created threats and subsequent self-protection activities, depression, delusions, cognitive impairment, negative symptoms, lack of insight in to what is happening to them and suicidal tendencies” and who has not undergone therapy for a period and has a history of stopping “lifelong mandatory medication of risperidone without any medical advice”.
The father expressed the view that any harm “is not intentional from the mother’s side, but only due to the mental illness.” He thought he might be able to manage that by supervising the daughter’s time with the mother, however the situation is “very different when I am removed from the child and the mother spends time with the child alone in another house without any ongoing therapy.
We note that, in his written statement dated 25 January 2022, the father stated that he had contacted:
(a)the Indian psychologist, who was mother’s treating psychologist in India, who told him to inform authorities that the mother could kill the daughter;
(b)the Indian medical practitioner who treated the mother for about four months, who also confirmed that the mother could harm the daughter; and
(c)the mother’s Indian psychiatrist from July 2017 until September 2020, who also confirmed that it is highly dangerous for the daughter to live with the mother, and this should be avoided unless the medical team has enough supported reasons otherwise.
The Tribunal acknowledges that, if the father contacted those Indian medical practitioners and they advised him along the lines he conveyed to the Tribunal, those statements would cause the father to be concerned about both the mother and the daughter. However, in the absence of written reports from all but one of those doctors and the opportunity to assess them, the Tribunal can give no weight to the summaries of their conversations which the father conveyed to the Tribunal.
That conclusion is strengthened because:
(a)the mother’s domestic living arrangements have changed significantly since she was receiving treatment from medical practitioners in India (and in Victoria); and
(b)the Tribunal was provided with the recent medical reports referred to above, two of which also contain information that is positive about the relationship between the mother and the daughter.
The mother’s GP wrote that the mother does not need any other treatment than the treatment she is currently receiving from her general practitioner and her psychologist. The mother “feels very happy, peaceful and settled” since living separately and having her daughter with her. She is “a caring and sensible mother” who is “a good carer for her daughter.” The mother had previously wanted to live under one roof with the father mainly because she wanted the daughter to grow up with both parents when she was young. Now the daughter is 10 years of age, the mother likes living separately so that the daughter will not witness any domestic violence. The mother’s mental state is “very stable.”
The Canberra psychologist referred to the difficult circumstances when the mother was residing with her former husband. According to the psychologist, the mother’s “only concern has always been the well-being of her daughter” and she took steps to put together a plan for her to leave the household with her daughter in a safe way. Although the mother stated that she felt “very anxious and at times depressed”, she had proven that she is able to overcome these “in order to prioritise the best interest of her child.” The Canberra psychologist has observed the mother’s interaction with her daughter (on Zoom) and “she is a very calm and nurturing mother.” The Canberra psychologist concluded with the observation that the mother’s “dedication to a daughter and her career is admirable” and that “I am very confident in her capability to continue to care and provide for her daughter in the safe and loving environment that she has created for her.”
In his report, the Indian medical practitioner stated that in May 2020 when his counselling of the mother commenced, she was “well-adjusted with her child” and the father and “her psychometry was negative.” It was decided to reduce her medication in tapering dosages depending upon the positive behavioural outcome. Everything proceeded satisfactorily for sessions over three months but, on 5 September 2020, it was found that the mother was slipping back to psychotic behavioural patterns. She was asked to continue the full dose of medication until her overt behaviour was within normal limits. There is no suggestion in his report that the mother could harm the daughter. That clinical evidence was confirmed by some of the father’s observations in his application the mother has from time to time ceased to take Risperidone and exhibited difficult behaviour, but she became normal when she resumed the medication.
Those observations are consistent with the reports of the two local practitioners (the GP and the Canberra psychologist), and support findings that the mother’s condition is influenced by her family circumstances and her taking the appropriate dosage of medication.
Although the material provided to the Tribunal by the father and the mother highlighted some significant differences between them, the picture of the relationship between the mother and the daughter that emerges from that material is fairly consistent.
The written material from the father indicates that:
(a)On occasions when he has been casually supervising the mother’s interaction with the daughter, for the most part he “enjoyed seeing mother and child getting together. Mainly the sight of the child having her mother was a pleasure to watch. The child loves her mother irrespective of being a bit different to others.”
(b)He has seen the mother and the daughter fight and scream at each other sometimes, but they are “very friendly most of the times.”
(c)Although the daughter has come to him crying and saying that the mother put excessive force on her hand or hit her lightly, the mother “never did anything like that” in his presence.
(d)Overall, he thought that “the child’s presence healed [the mother] and the child also got some benefit” from their supervised sessions together.
(e)The psychologist suggested to the father that the mother spending time with the daughter “without much stress also can improve her health.”
It is also clear from the father’s material that, to some extent at least, he considers that the successful interaction of the mother and the daughter has been facilitated by either his supervision or the security which the daughter experiences in knowing that the father is available to assist or intervene if required.
The written material from the mother, in the form of an affidavit for the Family Court proceedings, records how she has cared for or interreacted with her daughter while they lived together, and the effects of tension or violent activity and arguments between the parents on her daughter. The mother described her daughter’s progress at school and socially and her plans for the future.
That was confirmed by some of the statements which the mother made to the Tribunal at the hearing of this application about taking good care of her daughter and how their homelife is happy now they live apart from the father.
In summary, it appears that any tension between the mother and the daughter that might have resulted in aggressive behaviour on the mother’s part was precipitated or prompted by her domestic living circumstances. Now that she and the father are no longer living in the same premises, and she is continuing to take her medication, the risk (if any) of the mother doing serious harm to the daughter seems to have substantially reduced if not disappeared.
On the basis of the material summarised and quoted from above, the Tribunal is not satisfied that the mother is doing, or is likely to do, serious harm to the daughter. To the contrary, we are satisfied that the mother and the daughter have a positive relationship, and that the mother is proud of what she has achieved with her daughter (despite adverse circumstances over some years) and is determined to assist her daughter as she approaches puberty.

Conclusion and order

For the reasons set out above, we answer three questions that arise in relation to the application for an assessment order as follows:
(a)Does the mother appear to have a mental disorder or mental illness?
Yes, a mental illness.
(b)Is the mother’s health or safety subsequently at risk or likely to be substantially at risk?
No.
(c)Is the mother likely to do serious harm to the daughter.
No.
Consequently, the Tribunal orders that the application for an assessment order under section 37 of the MH Act lodged on 20 December 2021 is dismissed.

………………………………..

President G Neate AM
For and on behalf of the Tribunal

Date(s) of hearing:

31 January 2022 (by telephone)

Applicant (father):

In person

Respondent (mother):

Public Advocate:

In person

By an officer from the Public Advocate’s office