Rieman & Rieman

Case [2022] FedCFamC1F 980

Federal Circuit and Family Court of Australia

(DIVISION 1)

Rieman & Rieman [2022] FedCFamC1F 980

File number: SYC 7513 of 2013
Judgment of: CAMPTON J
Date of judgment: 9 December 2022
Catchwords: FAMILY LAW – PARENTING – Where upon the release of the family report it became clear that an expert opinion as to the mother’s mental health challenges would be necessary – Assessment of risk presented by mother’s mental health challenges – Time to be spent between mother and child pending trial – Identity of single psychiatric expert.
Legislation:

Family Law Act 1975 Cth s 60CC, 61C

Crimes (Sentencing Procedure Act) 1999 (NSW) s 8

Mental Health Act 2007 (NSW)
Cases cited:

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Division: Division 1 First Instance
Number of paragraphs: 100
Date of hearing: 5 December 2022
Place: Sydney
Counsel for the Applicant: Ms Bateman
Solicitor for the Applicant: Swifte Law
Counsel for the Respondent: Ms Lioumis
Solicitor for the Respondent: Barkus Doolan Winning
Counsel for the Independent Children’s Lawyer: Mr Jackson
The Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 7513 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RIEMAN

Applicant
AND:

MS RIEMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

9 December 2022

THE COURT ORDERS THAT:

1.

The matter be listed for trial over four days before McGuire J commencing on


14 February 2023, in person at the Sydney Registry.

Further trial directions

2.Except as provided for in these orders, the trial directions made on 31 March 2022 are confirmed.

3.On or before 1 February 2023, each of the parties are to file and serve any further updating affidavits upon which they wish to rely at trial, restricted as to the matters subsequent to the date of filing of their trial affidavits (being 15 September 2022 for the mother, and 15 November 2022 for the father).

4.On or before 8 February 2023, each party and the Independent Children’s Lawyer are to file and serve a single consolidated Outline of Case, including:

(a)A list of the material relied upon; and

(b)A brief chronology listing significant events that are relevant to the issues to be determined by the Court;

(c)A summary of contentions as to s 60CC factors relied upon to satisfy the Court that it is the best interests of X to make the orders sought; and

(d)Annexing an updated Minute of Order sought;

5.On or before 10 February 2023, each party and the Independent Children’s Lawyer are to provide to the associate to McGuire J an electronic copy of any tender bundle on which they seek to rely (using the email …@...), and are to bring a hard copy of that tender bundle for his Honour’s use to the Sydney…

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Rieman & Rieman [2022] FedCFamC1F 980
Case
[2022] FedCFamC1F 980
Decision Date

CaseChat Overview and Summary

The case of Rieman & Rieman involved the parents of a child, X, who were engaged in protracted parenting proceedings following their separation. The father sought to appoint a single expert psychiatric witness to assess the mother's mental health and its impact on X's welfare. The court was required to determine whether the mother's mental health issues posed a risk to X's welfare and whether it was in X's best interests to have equal shared parental responsibility with both parents.

The court found that the mother had exhibited some dysregulation and anti-social behaviour since X's birth, including allegations of stalking and making purchases using another man's credit card without consent. The court also considered the significantly damaged co-parenting relationship between the parents and the risk of family violence. The court held that it was not in X's best interests to apply the presumption that the parents should have equal shared parental responsibility for her, given the allegations of family violence raised by each parent against the other and the uncertainty expressed by the Court Child Expert as to the parents' capacity to share information and make decisions together without conflict.

The court appointed Dr G as the single psychiatric expert and made orders for the mother to spend time with X on certain days and for the mother's time with X to be supervised by the maternal grandmother or Ms D, or if they were not available, then by E Contact Service. The court also made orders to ensure the matter was ready for trial, including requiring the parents to file and serve any updated amended final Minute of Order sought after the report of Dr G had been released. The court found that it was not in X's best interests to apply the presumption that the parents should have equal shared parental responsibility for her, given the allegations of family violence raised by each parent against the other and the uncertainty expressed by the Court Child Expert as to the parents' capacity to share information and make decisions together without conflict.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, Dr G (“Dr G”) will be appointed as a Single Expert Psychiatric Witness and will be instructed broadly in the terms proposed by the mother but amended. The mother shall spend time with X each Thursday afternoon and during the day on Sunday, or as otherwise agreed between the parents. The orders made for the mother to spend block time supervised by the grandmother during the forthcoming Christmas holiday period will be suspended. The mother’s time will be supervised by the maternal grandmother or Ms D, or if they are not available, then by E Contact Service. The mother will meet the costs of E Contact Service. Further orders will be made to ensure the matter is ready for trial, including filing further affidavit material strictly by way of update (in circumstances where each party has filed their trial material) and requiring the parents to file and serve any updated amended final Minute of Order sought after the report of Dr G has been released. Background The parents commenced a relationship in January 2007 and were married in 2009. They separated upon the father moving out of the former family home in late 2012. X was three months of age. X has no memory of experiencing mutual and collaborative parenting by way of her mother and father living in the same home. Upon separation X remained living with the mother and spent time with the father. These parenting proceedings originally commenced on 18 December 2013 by the mother filing an Initiating Application in the Federal Circuit Court (as it was then). The parents engaged in a first tranche of parenting proceedings between 2013 and 2017. This protracted period of litigation was characterised by allegations of the mother withholding X from the father. During the course of those proceedings, the father filed a number of applications alleging contraventions of parenting orders by the mother. Consent orders were made on 19 July 2017 (“the 2017 final orders”) for the parents to have equal share parental responsibility for X, and for X to live with the mother and spend time with the father increasing to four nights per fortnight, and during the school holidays. Subject to the allegations as to non-compliance, X’s parenting was regulated broadly by the 2017 final orders until 22 July 2020. The mother’s mental health and associated behaviours Since X’s birth, the father contends that the mother has exhibited some dysregulation and anti-social behaviour. For example: (a)The father alleges that the mother has stalked him in the past. He gives evidence that in December 2014 the mother obtained keys to his former apartment in which he lived with his current partner, by purporting to be his wife to the real estate agent. It was the father’s evidence that the real estate agent reported the incident to police, and that the father subsequently obtained an apprehended violence order for his protection against the mother (which was later withdrawn). The mother does not give evidence in her trial affidavit as to this allegation.(b)In September 2016 an apprehended personal violence order was made against the mother for the protection of Ms H, the wife of the mother’s medical specialist. It was alleged by Ms H that the mother had stalked her. The father deposed to Ms H telling him that she believed she had seen the mother in her backyard, and that she held suspicions that the mother was “fixated” on her. The Court Child Expert recorded in the family report that on her reading of the subpoena material produced by NSW Police that “It seems that [the mother] had a fixation about [Mr and Ms H], which compromised her decision-making and behaviour at that time.” The apprehended personal violence order was set aside on appeal by a judge of the District Court of New South Wales in February 2017. His Honour’s reasons were placed into evidence as Exhibit 9. They recorded that while the judge had no doubt that Ms H “subjectively and honestly believed that the [mother] was stalking her”, he was not satisfied to the requisite standard that Ms H “had reasonable grounds to fear conduct amounting to intimidation” or that it was necessary to protect her from intimidation from the mother. (c)Between August 2018 and December 2019 the mother had a relationship with Mr F. Mr F was married during the period of the relationship. It is not controversial that in July 2020, the mother was arrested and charged of a number of offences relating to conduct involving both Mr F and his wife. The mother annexed to her affidavit an Amended Facts Sheet dated 8 October 2020, which set out the events from which the mother’s criminal charges arose. In brief, it was alleged that between December 2019 and July 2020, the mother made various purchases using Mr F’s credit card without consent, that she attended Mr F’s family home and refused to leave when requested, that she placed a receipt for a hotel booking made in her name and Mr F’s name on Ms F’s car, that she persistently contacted Mr F and his wife in person and by telephone, including verbally abusing them in the presence of their children, that she broke into Mr F’s family home while the family was on holidays and replaced a number of the framed family photographs with intimate images of Mr F, and finally that she had physically assaulted Mr F.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the dates now allocated for the trial, it is not possible for Dr U to prepare a report. It is for that reason, and those identified earlier herein, that Dr G shall be appointed as the single psychiatric expert. The draft letter of instruction to Dr G as tendered by the mother during the hearing will be amended in the terms identified in attachment A to these reasons. Conclusion For all of the above reasons, I make the orders set out at the forefront of this judgment. In circumstances where the matter is now listed for trial in February 2023, further trial directions shall be made to ensure all relevant material and updating material is before the Court.

Ratio Decidendi

Legal Principle Established

In the circumstances I find that it is not in X’s best interests to apply the presumption that the parents should have equal shared parental responsibility for her. That finding is bolstered by the allegations of family violence raised by each parents against the other, the significantly damaged co-parenting relationship between the parents, and the uncertainty expressed by the Court Child Expert as to the parents “capacity to share information and make decisions together, without conflict”.Section 60CC considerations Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests. The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. My interim decision primarily turns on the primary considerations, and particularly on the risk to X arising from the mother’s mental health challenges. Other considerations such as X’s views and the impact of family violence were not the focus of the submissions before me. Those matters will undoubtedly be ventilated at the trial, but are subsidiary to the assessment of risk. I will factor in the additional considerations set out in s 60CC(3) as identified by the parties as relevant in the course of the hearing. X’s relationships with her parents It is plain that X’s relationship with the mother, while potentially impacted by “underlying issues”, is nonetheless very important to X and is one characterised by warmth and excitement. Similarly, X clearly has a strong relationship with the father, and I accept that she identifies him as a “figure of safety and comfort”. Each party acknowledged, as did the Court Child Expert, that X’s relationship with her mother remains one of great importance for X. It was not proposed that X’s time with the mother should cease or become any less regular (than twice weekly). I am mindful that the orders I am asked by the father and the ICL to make will reduce X’s time with the mother, in that they would no longer share overnights or block periods of holiday time. I accept that such arrangement may impact the quality of X’s relationship with the mother. However, on either parent’s proposal X will continue to spend time with the mother on at least two days per week, with the capacity for an increase of time should the parents agree to such an arrangement in writing.Discussion and assessment of risk The mother in her affidavit raised a number of serious allegations that throughout her relationship the father engaged in a pattern of family violence, “verbal, physical, emotional, sexual and financial abuse”. While those allegations are of significant concern, they were not raised before me as factors which should influence my interim decision as to X’s care arrangements prior to the trial. Without abandoning her contentions, the mother told the Court Child Expert that she has “no concerns about [X’s] safety when in [the father’s] care”, and she accepted that X should live with the father in the interim. Rather, the focus of the interim determination before me was on the risks to X in the mother’s care.