Rieman & Rieman
[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 Registry on the first day of the hearing, and for the purpose of this order:
(a)The parties’ legal representatives and the Independent Children’s Lawyer if applicable, are to photocopy all documents produced on subpoena to which access has been granted in the proceedings for the purposes of each preparing a proposed tender bundle;
(b)The tender bundle is to comprise all documents that the parties’ (or the Independent Children’s Lawyer if applicable) propose to tender into evidence, or put to a witness in cross examination.
(c)The tender bundle is to be bound, indexed and paginated and provided to each of the parties electronically.
(d)The provision of r 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to documents comprising child welfare records, criminal records, medical records or police records shall not apply.
(e)Photocopies of any documents referred to in the above order shall be retained in the possession of a parties’ legal representative (or Independent Children’s Lawyer if applicable) at all times and are not to be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings and at the conclusion of proceedings be destroyed by the legal practitioner, (or Independent Children’s Lawyer if applicable) or returned to the Registry.
6.I grant leave to the parties and the Independent Children’s Lawyer to submit to my chambers by email (…@...) final consent orders should a compromise be achieved, to be considered by me in chambers.
AND pending further order:
The mother’s time with X
7.Order 5 made 22 November 2022 as to the suspension of the mother’s time with the child, X born on … 2012 (“X”), is discharged.
8.Orders 3 and 4 made 25 August 2021 as to the mother’s time with X be suspended.
9.X shall spend time with the mother as agreed between the parents in writing, and in failure of such agreement, as follows:
(a)Each Thursday from after school (or 3.00 pm in the event of a non-school day) until 7.30 pm; and
(b)Each Sunday from 9.00 am to 6.00 pm, noting that Christmas Day in 2022 falls on a Sunday and X shall continue to spend time with her mother in accordance with this Order on Christmas Day.
10.For the purpose of Order 9 above, the mother’s time with X shall be supervised:
(a)In the first instance by the maternal grandmother; or
(b)If the maternal grandmother is not available, then by Ms D (“Ms D”); or
(c)If neither the maternal grandmother nor Ms D are available, then by E Contact Service.
11.In the event that either of the maternal grandmother or Ms D wish to be released from their Undertakings filed with the Court on 2 September 2021, the mother is to forthwith notify the father and the Independent Children’s Lawyer.
12.The parties shall do all such acts and sign all such documents as are necessary to enrol with E Contact Service and complete any such intake forms necessary to engage with that supervision services.
13.Should the parties require the services of E Contact Service for the purpose of the mother’s supervised time pursuant to these orders, the mother is to meet the costs associated with such supervision.
14.The mother shall provide a copy of these orders together with the reasons for judgment to the maternal grandmother and Ms D within 48 hours of this order.
The single expert psychiatric evidence
15.
Dr G be appointed as a Single Expert Psychiatric Witness pursuant to
ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to opine as to the mother’s mental health.
16.Within four days of the date of these orders, the Independent Children’s Lawyer is to send the joint letter of instruction prepared by the mother’s solicitors, as amended and attached to these reasons (“Annexure A”), to Dr G.
17.The mother is to meet the costs of and associated with the report of Dr G.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
The final trial event as to the parenting arrangements of a 10 year old child, X born in 2012 (“X”) was listed to commence over 4 days on 5 December 2022.
On 21 November 2022, after each of the parties had filed their affidavit evidence for trial and in the shadow of that trial, the Court Child Expert produced a report to my chambers (“the Family Report”). It was released to the parties the following day on conditions recorded later in these reasons.
On the first day of the trial, the mother successfully applied with the consent of the father and the Independent Children’s Lawyer (“ICL”) for the trial to be adjourned on the basis that each parent and the ICL considered it necessary to obtain a single expert opinion as to the mother’s mental health challenges and their impact on the parenting of X. The trial will now listed to commence over four days on 14 February 2023.
The scope of the interim dispute agitated by each of the parents and the ICL substantially reduced over the course of the interim hearing on 5 December 2022. By the end of the hearing it was agreed that:
(a)The mother’s time with X would be supervised (notwithstanding pursuant to the last operative orders made on 25 August 2021 that the mother’s midweek and daytime spent on weekends was to be unsupervised);
(b)The mother’s cousin, Ms D (“Ms D”), and the supervising agency, E Contact Service, are appropriate supervisors of the mother’s time;
(c)The mother’s time spent during the school term would be a slight increase from the last operative orders (made on 25 August 2021) but less than agreed time to be spent as achieved between the parents, whereby the mother had spent overnight time during the week with X, prior to the release of the Family Report;
(d)The mother would meet the costs associated with obtaining a single expert psychiatric report.
The discrete issues to be determined are:
(a)Whether the maternal grandmother is an acceptable person to supervise the terms of time to be spent by the mother with X during the period until the adjourned trial; and
(b)Whether the supervised time to be spent by the mother with X ought to include block periods of five nights during the forthcoming Christmas School holiday period being a regime as specified in Order 3 made on 25 August 2021 (that time was to be supervised by the maternal grandmother pursuant to the orders) or continue during the Christmas holiday period on the current school time spent regime identified in [4(c)] above; and
(c)The identity of the single expert psychiatrist to opine on the mother’s mental health challenges and the instructions to be provided to that expert.
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.
At least part of the mother’s description of the events surrounding her arrest were recorded by her treating psychiatrist in Exhibit 8, being a discharge summary from the J Hospital. It records that in late July 2020, the mother was “in a heightened state of stress and a degree of shock”. She recounted that she was at that time experiencing “vaginal bleeding… shaking limbs and a stingy back”, which led her to believe that in July 2022, during the above recorded incident with Mr F, she “was injected with an emergency contraceptive to allow her uterus to shed outside its cycle, or some other hormone” by Mr F. The document records the mother’s apparent belief that during the altercation on that date, Mr F “reached behind her back and injected her with a substance”, before “[discarding] the needle and syringe, [peeling] off a band aide from his thumb exposing an old wound which subsequently began to bleed, claiming he was assaulted”. It further records the mother appeared to be suffering from “thought disorders” at the time.
The mother’s arrest in July 2022 does not appear on the evidence to have been the first incident which caused disruption. The Family Report records that:
88.Information from NSW Department of Education outlines several incidents where [the mother’s] conduct was inappropriate. Subpoenaed information details an incident in December 2020 where [the mother] reportedly behaved in an aggressive manner towards a teacher in the presence of students and staff. A further incident occurred in November 2020 where [the mother] was present at [X’s sports event] and reportedly hid in the change rooms to evade staff, and an incident in 2018 where [the mother] reportedly argued with a teacher in front of [X] and other students. Records also suggest that [the mother] engaged in an argument with [Mr F] outside the school grounds in front of several parents who intervened. In relation to [X], records indicate that [X] had an emotional outburst in November 2020 and claimed that she did not like the way her mother spoke to her on the phone.
In relation to the various incidents with Mr F, the mother entered a plea of guilty and was convicted of eight separate offences. In May 2021, she received a sentence pursuant to s 8 of the Crimes (Sentencing Procedure Act) 1999 (NSW), being a two year Community Correction Order. It expires in May 2023. The conditions attaching to the mother’s sentence include that the mother complies with all medication as reasonably directed by her treating psychiatrist and regular attendance upon her treating practitioners.
In addition to the criminal charges, in July 2020 Mr F obtained an Apprehended Domestic Violence Order against the mother for his and his wife’s protection. That order was made final in May 2021 and will expire in 2023.
In July 2020, the mother was admitted to the J Hospital on an involuntary basis. She was subsequently scheduled under the Mental Health Act 2007 (NSW) in July 2020.
The circumstances surrounding the mother’s admission to hospital are contested and findings of fact on this matter will be the subject of determination after a final hearing. It is the father’s firm case that the mother in July 2020 attempted suicide. He gives evidence in his trial affidavit of finding cards in X’s school bag on that date which read “Dear [X], I love you. Love mummy, xxoo” together with X’s “favourite dolly which she, ordinarily, is not allowed to take to school and doesn’t take to school”. He further deposes to a conversation he had with the NSW Police the following day, in which he was informed that:
110.…[the mother] was found in [Location K] yesterday. Ambulance and Police were [present]. She [initially refused assistance]. They [provided assistance] and figured out she was not mentally well and she was scheduled.
It is the mother’s equally firm case that she did not attempt suicide in July 2020. She said that around that time she felt anxious and stressed (arising in part from the above events), and that she sought calm by visiting that location. Her trial affidavit recorded her evidence that when she attended Location K on that date:
32. … [Weather conditions at Location K were unsafe. I required the assistance of emergency services to leave safely].
The father’s evidence (which does not seem to be put into issue by the mother) was on that afternoon in July 2020 he received a call from X’s primary school teacher asking that he pick X up, and informing him that the mother was in hospital. X remained in the father’s care thereafter.
The father’s evidence as to what (if anything) he told X about the circumstances of her coming into his care and the suspension of her time with the mother is very limited. During her interview in preparation for the Family Report, X told the Court Child Expert that the mother had a “car accident” and that she now lived with the father.
There is no doubt that the circumstances of X’s abrupt transition from her mother to her father would have been an incredibly difficult experience for her, and each parent deposed to holding concerns about the impact of such a change. The parents (although it is not clear when, or how it came about) have sought support for X by facilitating her attendance upon a child psychologist, Ms L. The affidavit evidence seems to suggest that X has attended Ms L since at least early 2021, and that she continues to see Ms L on about a monthly basis. At the hearing before me, the mother sought to tender a series of notes produced by Ms L on subpoena, which became Exhibit 5. Of note, they recorded that:
(a)On 3 March 2021, X identified “high levels of fear, excitement and feeling worn out”. She expressed to Ms L worries that her mother “would shout at her and that she would get upset and cry”, as well as describing:
… an imagined scenario where her mother would try to “kidnap” her, putting her in a car and she suggested she would shout out to her father “who would be close by” to come and get her”.
(b)On 31 March 2021, upon the father questioning X as to how she felt about the prospect of seeing the mother again (in what was described as a non-leading manner), X “disengaged”. When pressed, X identified feeling apathetic, explaining that she “had feelings in the back of her head that she couldn’t get out or understand yet”.
(c)On 28 April 2021, being the first appointment with Ms L after X re-commenced spending time with the mother, X was “reluctant” to speak about her mother but was “open about all other things”.
It is uncontroversial that the mother lives with diagnoses of first episode psychosis, delusional disorder, and persistent depression.
Further proceedings
The father recommenced proceedings by way of an Initiating Application filed in the Family Court of Australia (as it was then) on 29 July 2020. His application was brought on an urgent, ex-parte basis in the immediate aftermath of the mother’s involuntary admission to the J Hospital in July 2020 and X having thereafter come into the father’s care. He sought interim orders for the appointment of an ICL, and that pending further order, X live with him and that he have sole parental responsibility for X.
On 6 August 2020 the father’s Initiating Application was listed before Senior Registrar Campbell (as he was then). The father and the mother were each legally represented on that date, although it was noted that the solicitors on record for the mother had not obtained instructions from the mother and were unable to do so by reason of the constraints imposed on her upon her scheduling pursuant to the Mental Health Act. Orders were made on a defended basis:
(a)Suspending the 2017 consent orders;
(b)Providing for X to live with the father;
(c)Adjourning the proceedings until such time as the mother was discharged from the J Hospital, and thereafter for the filing of a Response to the father’s Initiating Application and affidavit material in support; and
(d)Granting the parties liberty to relist the proceedings on seven days’ notice.
The mother was discharged from J Hospital in August 2020. She has since engaged with a scaffold of professionals who assist her in the management of her mental health challenges on an ongoing basis, including:
·Dr M, her primary treating psychiatrist;
·Dr N, her treating psychiatrist from February 2022 until around October 2022, while Dr M was on extended leave;
·Dr O, her clinical psychologist; and
·Ms P, her mental health clinician.
Shortly after her discharge, the mother sought to recommence spending time with X. It is her contention that the father delayed in facilitating that time. The evidence seems to suggest that the mother wrote to the father with such requests in September and October 2020, directly at first and then via their respective solicitors. In response to her proposals to spend time with X, the father’s solicitors on 8 October 2020 requested disclosure of information as to the mother’s hospitalisation, the status of her mental health, and ancillary information, prior to the resumption of time. It is not clear that the mother or her solicitors responded to that request for disclosure.
On 22 October 2020 the mother filed and served on the father and ICL a Response, affidavit, and Notice of Child Abuse, Family Violence or Risk. She sought that the matter be relisted before the Court.
The matter was listed on 3 March 2021 for a hearing before a senior judicial registrar. On that date, orders were made for the mother to spend professionally supervised time with X each alternate Thursday from 4.30 pm to 6.30 pm at E Contact Service, with the costs of such supervision agency to be met equally by the parents. The first period of time that X spent with the mother pursuant to those orders was on 3 April 2021, eight months after she was placed into the father’s care. It was the mother’s evidence that X “showed no hesitation” coming into her care on this first occasion, nor on any occasion thereafter.
On 25 August 2021, the matter again came before the senior registrar for an interim hearing. Consent orders were made on that date (“the interim consent orders”) for X to live with the father and spend increasing time with the mother, which at first was to be supervised by the maternal grandmother during the day only, and then was to graduate to two, unsupervised day-time periods during the school term and block overnight periods during school holidays, supervised by the maternal grandmother. Provision was also made for X to spend time with the mother on special days, such as her birthday and Christmas. In addition to the orders mandating the initial supervision of the mother’s time, further orders were made so as to mitigate risk as follows:
8.The Mother undertakes to:
8.1Abide by all treatment, including taking medication, reasonably directed by [Dr M] or his delegate;
8.2Attend monthly reviews with [Dr M] or at such other frequency as directed by [Dr M];
8.3Attend Fortnightly contact with [Ms Q] or at such other frequency as directed by [Ms Q];
8.4Attend Monthly appointments with [Dr O] or at such other frequency as directed by [Dr O];
8.5Accept any further treatment as reasonably directed by health professionals.
10.Forthwith, the Mother will authorise her treating GP [Dr M], [Ms Q] and [Dr O] to contact the Independent Children's Lawyer if:-
10.1The Mother fails to attend any appointment without reasonable excuse;
10.2They hold concerns regarding her mental health including but not limited to a re-emergence of any of her previously dialogised mental health conditions.
11.The Mother shall inform the ICL within seven (7) days of any appointments arranged for her in respect of her mental health to attend her treating practitioners, namely, [Dr M] and his nominees, [Ms Q], [Dr O], her Treating General Practitioner and any other health professionals she attends upon in respect of her mental health from time to time.
15.Within fourteen (14) days from the date of these Orders, [the maternal grandmother] must file and serve an undertaking as to her role as a supervisor.
As at August 2021, the father was content for and consented to the maternal grandmother to supervise the mother’s time spent.
As was observed by the mother’s counsel in submissions, no complaint was made by the father that the interim consent orders as to supervision or as to the additional measures to supervise risk were not complied with by the mother. Similarly no complaint was made by either the father or the ICL as to the mother’s compliance with the various conditions attaching to her Community Corrections Order, including as to her attendance on her treating practitioners and compliance with her prescribed medication regime.
The mother’s time with X slowly increased from August 2021, both pursuant to the interim orders and by agreement between the parents, such that by early 2022 she was spending time with the mother unsupervised on Thursday from after school until 6.30 pm, and on Sunday from 9.00 am to 5.00 pm.
During the Christmas school holiday in 2021 and each mid-year school holidays thereafter, X has spent overnight time with the mother, supervised the maternal grandmother. At least one of these holiday block periods (in April 2022) took place in Queensland, where X’s extended maternal family live. No complaint was raised by the father in his trial affidavit as to how this time went. The mother’s affidavit evidence suggests that the time progressed without issue, that it was very special for both herself and X, and that X appeared comfortable in her care and displayed significant affection towards her.
On 12 September 2022, the father proposed that X’s time with the mother increase during Term 4 beyond that provided for by the August 2021 orders, such that X has spent time with the mother since September 2022 from 3.00 pm on Wednesday until 9.00 am on Friday (being two consecutive nights) and on Sunday from 9.00 am until 6.30 pm.
The parents provide mixed reports as to how the increase of time spent between the mother and X has been progressing. The mother deposes to the various activities which she and X do during their time together, including visiting the beach and organising playdates with X’s friends. In his affidavit, the father described X’s increased time with the mother as a “trial”, and said that such trial had not been “running for very long”. His affidavit evidence expressed uncertainty as to how the increased and unsupervised time with the mother was impacting X. He accepted that there have been no “major adverse incidents” since the most recent increase in time, but that X has “returned from [the mother’s care withdrawn, easily frustrated and irritable”. His evidence supporting this assertion was broad and unspecific, save for one incident on 13 November 2022, when he asserted X appeared withdrawn upon returning to his care and wet the bed that night.
The family report
In preparation for the release of the Family Report, the father and his current partner were interviewed by the Court Child Expert on 4 October 2022 by Microsoft Teams. Each of the father and mother were then observed on that same day with X, and X was also interviewed in person at the Sydney Registry. On 5 October 2022 the mother was interviewed by telephone.
The Court Child Expert had the benefit of the court documents produced in these proceedings. Other sources of information relied on by the Court Child Expert included material produced under subpoena from the NSW Police, X’s school, X’s treating psychologist and a range of different medical practitioners who have treated the mother in the past, including J Hospital.
The Court Child Expert opined as to a number of risk issues in this matter, which were broadly identified as:
(a)The impact of the mother’s “poor mental health and associated behaviours” on X’s psychological wellbeing, including her capacity to meet X’s emotional needs;
(b)The impact of the mother’s capacity, or potential lack thereof, to support X having a relationship with the father; and
(c)The risk raised by the father of the possibility of the mother “committing murder-suicide”.
An undercurrent of the Family Report was that the mother has difficulty acknowledging the impact of her mental health challenges on the people around her, including X, and that she lacks insight into the seriousness of her antisocial behaviours. For example, the mother described her arrest in relation to the criminal incidents involving Mr F as a “non-event”.
The Court Child Expert observed X to have a strong and comfortable relationship with the father. She described the father as a “figure of safety and comfort” for X, and recorded X’s statement that he was “the best dad in the world”.
X’s relationship with the mother was explored in the Family Report in more detail. The Court Child Expert observed that their relationship was one characterised by “excitement and warmth”, but with “underlying issues”. The Court Child Expert’s opinion as to the complexity of X’s relationship with the mother was grounded from statements made by X during the course of the interview and an observation process. That opinion included:
80.When discussing what it was like living with her mother, before she began to live with her father, [X’s] demeanour changed slightly. She seemed uneasy when asked questions about her mother’s care and often responded to the Court Child Expert with “why do you want to know that?” [X] said that she does not remember what it was like living with her mother as it was too long ago. She did say that she remembers not seeing her mother for a long period of time when she first came to live with her father and that this was “confusing” for her. Overall, [X] seemed reluctant to talk about her relationship with her mother.
81.[X] described her mother to be “kind, funny, playful” and stated “she’s a great mum”. When asked about how her time is with her mother, [X] seemed apprehensive. [X] paused, said “Ummmm”, and then said that the sleepovers are going “Okay”. [X] said that she is aware of her parents’ dispute. She reported that it is her understanding that she is to decide with whom she wants to live with and identified feeling worried about hurting her mother’s feelings. The Court Child Expert explained to [X] that it is not her decision as to which parent she lives with and the Judge makes the decision. It was reiterated to [X] that the Judge would like to hear from [X] about her family and her wishes.
82.[X] stated that she wanted things to be “fair and equal” and claimed, “I don’t want to choose between my parents”. She said that she likes both her parents and she does not want to upset her mother. [X] said that she spoke to her mother about her wish to be in an equal arrangement and that her mother reportedly informed her not to say that she ([X]) wants equal time. [X] said that it is her mother’s view that “equal isn’t fair” and that she ([X]) should live with her ([the mother]). [X] said that her mother will get angry with her and she commented that she is worried about that.
(Emphasis added)
The Family Report continued:
90.Information from [W Psychology] indicates that [X] has struggled with regulating emotions, which has negatively affected her friendships. The information further indicates that [X] identified feelings of fear and excitement, in relation to seeing [the mother] and that she has imagined scenarios about [the mother] kidnapping her.
…
93.[X’s] observation with [the mother] seemed to be characterised by excitement, and warmth. They were observed to move about the room together whilst laughing, and their interaction appeared to be playful. [The mother] presented as an energetic and active parent. Whilst the observation between [X] and [the mother] suggests that they have a positive relationship in terms of how they interact with each other and their love for one another, [X’s] interview suggests that she may have conflicted feelings about her relationship with her mother, which may be indicative of complex underlying features of their relationship. On a superficial level, it seems that [X’s] relationship with her mother is positive. However, [X’s] presentation during her interview does suggest that their relationship has underlying issues.
94.It is the Court Child Expert’s impression that [X] seemed guarded about sharing information about her mother as she seemed apprehensive when asked questions about [the mother]. [X’s] responses about not remembering what it was like living with her mother before living with her father and her questions to the Court Child Expert about why she was being asked about her mother, indicate that she may have been reluctant and worried about sharing information about her mother. It seemed that [X] was unwilling to provide an accurate account about her feelings towards her mother and their relationship. Her presentation in this part of the interview suggests that [X] was trying to protect her mother and not portray her mother in a negative way. The Court Child Expert is concerned that [X] is potentially withholding information about her mother, which may provide the Court with an insight into [the mother’s] parenting behaviour and their relationship. This withholding suggests that [X] may be emotionally burdened and experiencing high levels of stress.
(Emphasis added)
Overall, the Court Child Expert’s opinion as expressed in the Family Report was that X was reluctant to speak about her relationship with her mother and was uneasy and guarded when doing so. It is plain that X carries the burden of the dispute between her parents, and is conflicted by the weight of what she perceived to be “deciding” between them (see [94] of the Family Report).
The Court Child Expert then turned to a consideration of the risks alleged to X. The most concerning of those identified risks was raised by the father in his interview with the Court Child Expert, seemingly “reluctantly”. The foundation of this concern will undoubtedly be tested by way of the expert evidence to be obtained in relation to the mother’s mental health challenges. However, it was the Court Child Expert’s preliminary opinion that:
100.The father’s concern about the possibility of [the mother] committing murder suicide is a highly serious concern. [The father] seemed hesitant when sharing this concern and he was unsure of how his proposal of time should change. Whilst this is a complex issue to assess, it must be said that the unpredictable and extreme nature of [the mother’s] history of criminal behaviour lends weight to [the father’s] concern. It is the Court Child Expert’s view that [X] could be at particular risk of harm if [the mother] is dissatisfied with the Court’s final orders.
(Emphasis added)
As to the further risks to X arising from the mother’s mental health challenges, the Court Child Expert opined:
102.[The mother’s] proposal would allow [X] to be cared for by the parent who was her primary caregiver for most of her life. If [X] were to live with [the mother], she may benefit from being reunified with her mother in a familiar environment. [The mother’s] proposal in relation to time would also allow [X] to maintain a relationship with her father. However, the information gathered in this assessment suggests that [X] could be at psychological risk of harm, living or spending time with [the mother], due to her ([the mother]) poor mental health and associated behaviours.
…
104.The Court Child Expert holds concern about [the mother’s] capacity to support [X] having a relationship with [the father]. The information [X] provided about [the mother] withholding [X] is of concern. This information suggests that [the mother] does not support the relationship [X] has with [the father] and that she had disregard for the previous orders in relation to time… If [X] were to live with [the mother] and her time with her father be withheld, this would likely have a detrimental impact on [X’s] relationships with both parents. Additionally there is the risk that [X] may decide to abscond from [the mother] and self place with her father.
105.The Court Child Expert also holds concern about [X’s] emotional wellbeing should she live with [the mother]. [the father’s] descriptions of [X’s] relationship with her mother, if accurate, indicate a possibility that [the mother] may not have the capacity to meet [X’s] emotional needs. Furthermore, the information provided by [X] about [the mother’s] conversations about what to tell the Court Child Expert is concerning… [The mother’s] involvement of [X] in the proceedings and parental conflict, suggests that she lacks insight into [X’s] needs and that she ([the mother]) is struggling to be child focussed. It seems that [the mother] would benefit from seeking professional support on this issue. Additionally, if [the mother] continues to include [X] in adult conversations about the proceedings and is dismissive of [X’s] wishes, this may have a negative impact on their relationship and potentially cause anxiety for [X].
106.…The Court Child Expert is particularly concerned about the impact on [X] if a living arrangement with [the mother] were to break down and [X] returned to [the father]. It is likely that this would be destabilising for [X], emotionally challenging, and potentially detrimental to her mental health. At this stage, it seems that if [X] were to continue living with [the father] it would provide her with stability that may not be guaranteed if she were to live with [the mother].
(Emphasis added)
Ultimately, each of these identified risks will be matters for the trial judge to assess with the benefit of all of the tested evidence, however they are not matters that I can discount at this interim stage of the proceedings.
Having identified the possibility that [X] may be at risk of harm in the mother’s care, the Court Child Expert said:
107.Given the potential future risk to [X] if she were to live with her mother, consideration might also need to be given to either a reduction of time between [X] and [the mother], or no time. This is the case with regard to the same risks that would be present whether she lives or spends time with her mother, but also there may be an increase in risk to [X] if she were to spend time with her mother and [the mother] is dissatisfied with the Court outcome. An order for no time would potentially be beneficial to [X], in that her emotional wellbeing and safety would not be detrimentally impacted by [the mother’s] mental health, influence, and associated behaviour. However, the disadvantage of this for [X] would be the potential loss of her mother from her life. Whilst an order for no time may provide some protection in the short term, it is possible that [X] may seek out time with her mother on her own accord, which could put her at further risk, and she may experience issues with identity in her adolescence and adulthood. Additionally, the emotional impact of no time with her mother would likely be very difficult for [X], especially given her developmental stage and [the mother’s] role as her previous primary caregiver.
Ultimately, the Court Child Expert’s recommendations were made conditional on the Court’s findings as to risk. She opined that if the risk to X in her mother’s care was assessed by the Court as low, then consideration could be given to X living with the father and spending overnight time with the mother (for example, on alternate weekends). Conversely, she opined that if the risk to X was assessed as unacceptable, then the Court Child Expert said that consideration should be given to a reduction of time, or no time, between X and the mother.
The release of the family report
On 22 November 2022 the matter was urgently listed for case management with a direction that the parents’ legal representatives and the Independent Children’s Lawyer (“ICL”) attend in the absence of either of the parents. The following orders were made:
1.Pursuant to Pt 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the family report of [Ms R] dated 21 November 2022 (“the Family Report”) is released only to the legal representatives of the mother, the legal representatives of the father and the [ICL].
2.The father and the mother are permitted to read the Family Report in the presence of their respective legal representatives, provided that each party files an Undertaking to the Court not to disclose the contents of the Family Report to any other person, other than as prescribed by these orders and in particular, to the child, [X] born on [in] 2012 (“[X]”).
3.As soon as reasonably practicable after the making of these orders, the mother’s solicitors are requested to provide a copy of the Family Report to the mother’s treating psychiatrist, [Dr M] of the [B Health Service], and her treating clinical psychologist, [Dr O] of [Y Counselling].
4.The mother’s solicitors be at liberty to provide the Family Report to any such other of the mother’s treating clinicians as [Dr M] or the mother sees fit, including:
(a)[Dr S] of [T Medical Practice]; and
(b)[Ms P] of [C Health Service].
5.On the Court’s own motion without hearing from the parties or the [ICL], grounded from the content of the Family Report, including that as recorded at paragraphs [100], [104]-[105], and particularly [110] therein, noting that the proceedings are currently listed for trial commencing on 5 December 2022, Order 3 made on 25 August 2021 as to the mother’s time with [X] shall be suspended pending further order.
6.The mother shall have liberty to relist the proceedings on 48 hours’ notice to the father and the [ICL], by way of an email request to my chambers, copied to all parties, annexing a Minute of Order sought on the relisting.
7.The proceedings are listed for trial management or any such further application by the parties or the [ICL] at 2pm on 30 November 2022 by way of Microsoft Teams.
The effect of Order 5 made on 22 November 2022 on the Court’s own motion, without hearing from either of the parents, was to suspend the mother’s time with X as a precautionary protective order grounded from the expert evidence of the Court Child Expert.
Each of the parties filed updating affidavits after the release of the Family Report (the father on 24 November 2022 and the mother on 2 December 2022). They each gave evidence as to a number of unusual events in the lead up to and immediately after the release of the Family Report.
It was the father’s evidence that on 13 November 2022, X returned to his care after spending time with the mother in a “quiet, sad, reserved, sullen and despondent” mood. The father asserted that X said words to the effect of “Mummy said I lost her favourite towel, it’s only a stupid towel”. He said that X wet the bed that evening. The father alleged that the following day, the mother called X and “interrogated her about the lost towel” which “developed into a minor verbal argument with X becoming sad, despondent, frustrated and angry with the [mother].” It is unclear whether the father overheard that argument, or whether his evidence derives from conversations he had with X. The mother did not respond to these assertions in her updating affidavit.
The father dropped X to school on 23 November 2022. He said that on that morning, X’s teacher informed him that the mother “turned up at the school class room last Monday (14 November 22) and questioned her about a towel left at a party. X was confused and said she didn't know.” The father provided X’s school with a copy of the orders made on 22 November 2022 and informed them that the mother’s time with X had been suspended.
At or about 3.00 pm on 23 November 2022, the father attended X’s school to pick her up. He deposed to a conversation between he and X in the following terms:
17. …[X] was reserved and the first thing she said was, “Does mummy know you're picking me up?”
I said, “Yes she knows.”
[X] asked, “So did she come to the school today? Why did the Court decide that I won't see mummy today?”
I said, “I don't know if mummy came to the school, did you see her? The Court is trying to figure out what happens later in December during the court dates, we 'II know more on Tuesday.”
The father said that while he and X were talking, the mother “popped out of the crowd… grabbed [X's] hand, leant into her and said, ‘It's ok go with dad, I just wanted to tell you, I'll see you soon. It's ok.’” He recorded that X “reeled away and was startled”. The parents ended the conversation, and X left with the father.
The mother gives evidence of this interaction, in not dissimilar terms. She said that she attended the school on 23 November 2022, approached X and “softly caressed [X’s] shoulder”, and said to her “Hi [X]. You are not coming to see me today. Everything is okay. I love you and I miss you and I will see you soon”, to which X allegedly responded with a smile and a kiss, and said “I love you too”.
Although the mother’s affidavit recorded that she had not read the Family Report before attending X’s school on 23 November 2022, she conceded during the course of the hearing before me on 5 December 2022 that she was aware of at least the contents of the orders suspending her time with X, and that she had spoken to her solicitors after those orders were made. The orders make plain that the suspension of time was grounded from concerns as to X’s safety raised in the Family Report.
It was the mother’s evidence that she had not attended X’s school for the purpose of collecting or seeing X, but to walk the child of one of her friend’s home from school. The mother did not identify her friend, nor did she give any reason as to why that arrangement could be changed.
While factual findings as to the events on 23 November 2022 will be a matter for determination at trial, on one view the mother’s conduct on that day was both reckless and impulsive. It may be that the mother’s attendance at X’s school, when she knew that there were orders in place suspending her time with X and when she had the benefit of advice from her experienced solicitors, may provide credence to the Court Child Expert’s observation as to her unpredictability and possible diminished capacity to be child focussed.
The father gave further evidence that on 24 November 2022 when he dropped X to school, she said to him words to the effect of “Don’t worry Dad, I won’t be kidnapped, I hope.” It is his case that X has expressed a fear of being “kidnapped” by the mother in the past, including to her treating psychologist as recorded above.
The remaining issues
The father’s case
As recorded, the father’s interim case was that the maternal grandmother should not be permitted to supervise the mother’s time with X, that such time should be limited to day-time periods, rather than block-periods during the upcoming Christmas holiday, and that Dr U should be appointed as the single psychiatric expert to assess the mother’s mental health.
The father submitted that the mother’s discharge summary produced on subpoena by the J Hospital (which was Exhibit 8) grounded a concern as to the suitability of the maternal grandmother as a supervisor of the mother’s time. That summary recorded notes from a discussion with the mother’s sister, as follows:
Collateral from [Ms V] (sister)
Describes her childhood and [the mother’s] as traumatic
States [the mother’s] behaviour is modelled after [the maternal grandmother’s]:•Physical abuse-witnessed and experiences at parent’s home
•Sexual abuse potentially
Unemployed for the past 8 years- encouraged by [maternal grandmother]
Kidnapped under duress 2015 by [maternal grandmother] and signed [an] affidavit for [the mother]
(As it was recorded)
He coupled the above evidence with his concerns as articulated to the Court Child Expert and recorded in the Family Report at [50], that the mother seems to have an “enmeshed relationship with the maternal grandmother”, which he feared the mother may replicate with X. It was the father’s submission that the accumulation of this evidence grounded the conclusion that the maternal grandmother was not a fit person to supervised the mother’s time with X.
As to the single psychiatric expert, the father contended that Dr U ought be preferred to the mother’s nominated expert, Dr G, because his broader qualifications would permit him to opine on the mother’s mental health presentation as well as her parental capacity. He submitted it was appropriate that the single expert’s opinion include a “parenting assessment” going towards a number of factors identified in s 60CC of the Family Law Act 1975 Cth (“the Act”).
The father submitted that if engaged, Dr U would be in a position to conduct interviews with the parents in February 2023 and would produce a report shortly thereafter. The estimate of Dr U’s fees for the preparation of such a report was somewhat uncertain, but may have been up to $17,000.
The mother’s case
It was the mother’s case at that pending the trial, her time should resume in accordance with Orders 3.4, 3.7 and 3.8 of the interim consent orders made on 25 August 2021, with the caveat that such time would be supervised by either the maternal grandmother or Ms D or E Contact Service as recorded above, and that Dr G be appointed as the single expert psychiatric witness to opine on her mental health challenges.
To her credit, the mother conceded the complex character of a delusional disorder, and directed the Court’s focus to her stable mental health presentation since the end of 2020. She appropriately recognised the contents Family Report in agreeing to her time with X being supervised pending the trial. She strongly submitted, however, that there was no evidence that the maternal grandmother had not properly undertaken her role as a supervisor, consistent with the terms of her Undertaking filed on 2 September 2021. The mother argued with some force that the father had consented to the maternal grandmother as a supervisor at the time of the interim consent orders, and had not raised a complaint as to the appropriateness of her supervision over the past 16 months.
The mother’s case for the continuation of extended blocks of overnight time in accordance with the interim consent orders was directed to the scaffold of orders already in place to mitigate risk to X in her care. She pointed to supervision as being an appropriate measure to ensure X’s safety, and reiterated that there was no evidence to suggest that such supervision had been insufficient in achieve that goal. Further, she submitted with some force that supervision was but one aspect of a “package” of orders which operate conjunctively to provide protection for X, including:
(a)The requirement for the mother to attend upon her treatment team and comply with their recommendations and medication regime;
(b)The capacity for the mother’s treatment team to contact the ICL in the event she does not attend one of her scheduled appointments; and
(c)The notice given by the mother to the ICL about her scheduled appointments and any changes as to her treatment plan.
The mother observed that since the consent interim orders were made in August 2021, the father has agreed to X spending additional time with the mother beyond what was provided for by those orders. It was the mother’s submission that the father did so with the benefit of all of the documents already produced on subpoena in the proceedings, and with the benefit of insights from X’s treating psychologist. She said that the Family Report did not really identify any new incidents of concern of which the father was not already aware that would ground a reduction in the mother’s time.
In respect of the identity of the single psychiatric expert, the mother submitted that Dr G should be preferred to the father’s nominated expert because he was both less expensive and had better availability than Dr U. The mother submitted, and it seemed uncontroversial, that Dr G’s fees for the preparation of a report would be in the range of $7,000. She told the Court that Dr G was available to meet with the mother and engage in the process of interviews and information collection in December 2022, with a report to then be made available to the parties in January 2023.
The mother strongly rejected the father’s contention that the scope of the single expert psychiatric witness’ opinion should extend to an assessment of the mother’s parenting capacity and to the range of s 60CC factors identified by the father. She said that the expanded scope would result in a duplication of a raft of expert opinion evidence already contained in the Family Report. It was her submission that the lacuna in the evidence is narrow, and that the Court would really only be assisted by targeted single expert evidence as to the mother’s mental health challenges.
It was further persuasively submitted by the mother that should the single psychiatric expert be asked to engage in a “parenting assessment”, that process would likely involve X being interviewed or observed with the mother. She said that X is a child who has faced a number of traumatic events over the last two years and been required to participate in various interviews and assessments arising from those events, including meeting with her psychologist regularly and participating in the preparation of the Family Report. The mother drew the Court’s attention to notes produced on subpoena by X’s psychologist (which were Exhibit 5), which suggested that X has experienced some “fatigue with therapy” and shown reluctance to answer questions about her mother and her care arrangements. Hence she submitted that X should not be asked to undertake another, unnecessary assessment process.
The ICL’s case
As a starting point the ICL said forcefully that the mother’s time with X cannot be suspended until the trial and that face-to-face time between them must continue. The ICL said, as was accepted by both parents, that the “safe option” was to permit a continuation of supervised time. Each of the maternal grandmother and Ms D were submitted to be appropriate supervisors.
It was the ICL’s case that a number of observations of the Court Child Expert caused concern as to there being an ongoing risk to X in her mother’s care and required the Court to act conservatively for her protection pending the trial. The ICL submitted that particular weight must be given to the observation of the Court Child Expert that X appeared reluctant to share information about the mother, and appears to be experiencing some degree of anxiety in relation to her relationship with the mother. It was submitted that the concerns were so serious, such that the “possibility that they might or might not happen” was sufficient to warrant the Court adopting a cautious approach.
The ICL forcefully submitted that the Family Report was prima facie credible evidence on which the Court must place significant weight in the context of this interim determination.
While acknowledging the mother’s compliance with her treatment regime, for which she must be given credit, the ICL submitted that the evidence as to the mother’s mental health presentation was currently deficient. The ICL highlighted that the foundations for the recommendations and conclusions of the mother’s treating practitioners on which the mother intended to rely, were uncertain and seemingly couched in the context of the mother’s therapeutic relationships with those practitioners.
In respect of the identity of the single psychiatric witness, the ICL preferred Dr G, for many of the same reasons as identified by the mother. The ICL said that it would be unacceptable for X to be put through a further round of assessment, or for there to be a double-up of the expert evidence contained in the Family Report.
The mother’s time with X pending the trial
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. In determining which orders will be in the X’s best interests, regard must be had to the relevant matters set out in s 60CC of the Act.
The relevant principles in relation to parenting and interim proceedings are set out in
Goode and Goode(2006) FLC 93-286.
This Court has, on a number of occasions, described the difficulties of determining cases which concern children in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested and conflicting factual contests resolved. The Full Court in Marvel & Marvel (2010) 43 Fam LR 348 observed that interim hearings and consequential orders are “a necessary temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” such that a conservative approach is adopted. Merely because facts or opinions are disputed does not mean that the evidence on the topic must be disregarded (see Salah & Salah (2016) FLC 93-713 at [39]-[42]).
Parental responsibility
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. In this matter neither parent nor the ICL:
(a)Seeks an order allocating parenting responsibility for X pending the final hearing;
(b)Seeks to disturb the suspension of the 2017 consent orders, meaning that no current order as to the allocation of parental responsibility for X is in force;
(c)Seeks to disturb the default position established by s 61C of the Act being that each parent has parental responsibility for X;
(d)Agitates that X spend equal time or substantial and significant time with the mother;
(e)Raises any issue as to the current position preventing the parents from making any major, long-term decisions for X, pending the trial.
Implicitly, each parent and the ICL accepts that the current default position provided for by the Act is able to promote X’s best interests. For those reasons, it is neither appropriate nor necessary to make an order allocating parental responsibility on an interim basis at this time.
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.
The Full Court in Isles & Nelissen (2022) 65 Fam LR 288 identified that the predictive consideration of an assessment of risk includes “possibilities”. As was appropriately identified by the ICL, I am required to be mindful of the serious concerns raised by both the father and the Court Child Expert as to the risk to X in the mother’s care, which cannot be disregarded just because they are at this stage mere “possibilities”, or because the evidence is controversial. Those concerns identified at [37] above, albeit untested, are not so farfetched or fanciful so as to render them insignificant. They are grounded from:
(a)The mother’s significant mental health challenges and past anti-social behaviour, coupled with the fact of X being reluctant to share information about her mother, which raises the spectre that X will not be forthcoming in the event that she feels insecure in the mother’s care, or if the mother engages in further antisocial behaviour in X’s presence;
(b)X’s worries about being “kidnapped” by the mother, as deposed to by the father in his affidavit filed on 24 November 2022 and recorded in Exhibit 5. This appears to now be a longstanding source of anxiety for X, that ought to be ameliorated;
(c)The complex underlying features of X’s relationship with the mother, including what may be the mother’s impulsive behaviour in burdening X with matters relating to her parenting, being the focus of these proceedings.
While they are untested and may ultimately be challenged by evidence at trial, including the expert evidence to be adduced as to the mother’s mental health challenges, these possibilities of risks lend weight to the conclusion that X should not spend block, overnight time with the mother pending the trial.
A relevant factor to my decision is that the trial is now listed to commence on 14 February 2022, being approximately two months from the date of these orders. Hence, the restriction as to the mother’s time with X is for a relatively short period.
For these reasons, I accept the submissions as made by the ICL and will suspend X’s block overnight holiday time with the mother, pending the trial.
I do not accept the father’s submissions as to the maternal grandmother being an inappropriate person to supervise the mother’s time with X over the forthcoming period until the trial. For the reasons identified by the mother and the ICL, and specifically in circumstances where the father consented to the maternal grandmother being a supervisor of time-spent in August 2021 and then having made no material complaint made by the father as to the maternal grandmother’s supervision since that time, I will order that the maternal grandmother be a supervisor of X’s time with the mother.
The father submits that he does not have the capacity to meet the costs of E Contact Service should they be required to supervise the mother’s time for X. The mother seemingly does have that capacity, in circumstances where she has consented to fund the costs of the single psychiatric expert’s report herself. It seems unlikely that the parties would be required to re-engage with E Contact Service in the short period until the trial, given that there is no evidence to suggest either the maternal grandmother or Ms D will be unavailable to supervise the mother’s time. However, in the circumstances, the costs of the provision of this service will fall to the mother in the event it is required.
The single expert psychiatric report
For the purposes of the trial the mother relied on a raft of evidence of her prior and current treating practitioners. The evidence of those practitioners provided snapshots of the mother’s mental health at particular moments in time and broad assertions as to her prognosis that appear to be grounded largely from the mother’s self-reporting. At no time has there been a longitudinal forensic assessment of the mother’s mental health challenges and their impact on her parental capacity, including any unacceptable risk the may be posed to the mother and to others including X. Hence, in my view and consistent with the submissions of the mother and ICL, it is important that the opinion of the single psychiatric expert be targeted specifically as to the mother’s mental health challenges.
It is unclear and of course would be a matter for Dr U, if instructed on broader terms to opine as to the mother’s parenting capacities, as to whether the expert would wish to interview X or observe her with the mother. I accept the strong submissions of the mother and the ICL that the possibility of X engaging in a further assessment process should be avoided, and further that a duplication of expert evidence on relevant issues would be unnecessary.
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.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 9 December 2022
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