Rivers & Rivers
[2023] FedCFamC2F 296
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rivers & Rivers [2023] FedCFamC2F 296
File number(s): NCC 1096 of 2017 Judgment of: JUDGE CARTY Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – PARENTING – final parenting application – consideration of risk of harm to children in the household of mother – impact of mental health on mother’s parenting capacity – children’s experiences of trauma in mother’s household – whether mother has demonstrated that she has adequately addressed her mental health issues – how identified risks of harm to children can be ameliorated – whether children’s time with mother requires supervision – if supervision is required what time will children spend with mother – whether professional supervision is required – capacity of father to support children’s relationships with mother – whether ongoing counselling for the children is benefitting each child – whether parents should be required to arrange alternative therapy for children Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) Pt VII ss60B, 60CA, 60CC, 60CG,61DA, 65DAA, 69ZN, 102NA
Federal Circuit and Family Court of Australia ( Family Law) Rules 2021 Rule 10.26
Mental Health Act 2007 (NSW) s 22
Cases cited: Rivers & Rivers [2020] FCCA 2052
Isles & Nelissen [2022] FedCFamC1F 97
M v M (1988) 166 CLR 69
Napier and Hepburn [2006] FAmCA 1316; (2006) FLC 93-303
N and S and the Separate Representative [1995] FamCA 139; (1996) FLC 92-655
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001]FamCA 348
WK & SR [1997] FamCA 57; (1997) FLC 92-787
Division: Division 2 Family Law Number of paragraphs: 203 Date of last submission/s: 17 November 2022 Date of hearing: 22, 23 and 31 August 2022 Place: Newcastle The Applicant: Self-represented Counsel for the Applicant: Mr Duane Solicitor for the Applicant: CDG Law Newcastle Pty Ltd Solicitor-Advocate for the Independent Children’s Lawyer: Mr Squires
Solicitor for the Independent Children’s Lawyer Legal Aid NSW ORDERS
NCC 1096 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RIVERS
Applicant
AND: MR RIVERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE CARTY
DATE OF ORDER:
17 March 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The father have sole parental responsibility for the children X born in 2011, Y born in 2012 and Z born in 2015 (“the children”).
3.The children live with the father.
4.Whenever a decision about a major long term issue in relation to the children or any of the children arises the father will, other than in a genuine emergency, contact the mother in writing and:
(a)Identify the issue;
(b)Set out his proposal;
(c)Invite the mother to respond with any alternate proposal within a stated and reasonable period of time; and
(d)Inform the mother promptly of the decision he has taken.
5.The children shall spend up to four (4) hours supervised time with the mother as follows;
(a)On Easter Monday;
(b)On Mother’s Day;
(c)On Boxing Day;
(d)On the mother’s birthday;
(e)On the children’s birthdays; and
(f)With such time occurring within seven (7) days before or after the actual date of such event.
6.The mother shall spend time with the children supervised by D Contact Centre or such other professional supervised contact centre (“the supervisor”) as agreed by the parents and to facilitate such, the parents shall:
(a)Engage with the supervisor and arrange for times as reasonably available for the supervisor;
(b)The father shall deliver the children to the supervisor and collect the children at the end of the supervised time; and
(c)The mother shall pay the costs of the supervisor.
7.The children communicate with the mother at any reasonable time requested by the children or any of the children, with such calls not to occur after 6:30pm unless otherwise agreed between the parents in writing.
8.Each parent will keep the other parent informed at all times of his and her current landline or mobile telephone contact number and email address, and notify the other parent within twenty-four (24) hours of any change occurring to their landline or mobile telephone contact number or to their email address.
9.Each parent will notify the other no less than fourteen (14) days prior to that parent moving to a new residence, and shall inform the other parent of his or her new residential address.
10.The father will keep the mother informed of the details of any medical practitioner and allied health professional who may be engaged for, or seen by, the children or any of the children.
11.In the event any of the children suffer an accident, serious illness, or hospitalisation then the parent who is then caring for the children will:
(a)Notify the other parent as soon as practicable;
(b)Provide the other parent with the name and contact details of the practitioner or medical facility upon which the child or children attend as soon as practicable; and
(c)Inform the practitioner or medical facility that both parents have permission to access the child or the children’s medical records and receive information concerning the child or the children upon request.
12.Each parent is at liberty to attend any school function, sporting activity or other extracurricular activity to which the parents are invited, subject to the mother being hereby restrained from approaching within 10 metres of the father or his partner, Ms K, unless with the consent in writing of the father.
13.The parents are each at liberty to provide a sealed copy of these orders to any school which the child or the children attend, and these orders are sufficient authority for each parent to receive a copy of any school report, newsletter, any other written notice about the child or the children, including school photographs application forms, at the requesting parent’s own expense.
14.The parents are each hereby restrained by injunction from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the child or the children, and must physically remove the child or the children from the vicinity of any other person doing so.
15.The parents must use the “our family wizard’ application or a similar co-parenting application, to communicate about any issue or matter relating to the children’s health, development, education, or attendance at extra-curricular and sporting activities.
16.The parents are permitted to supply a copy of the Family Report, these Reasons for Judgment, and a copy of the final parenting orders to the children’s treating therapist.
17.For the purpose of supporting her ongoing therapy, the mother is permitted to supply a copy of the Family Report and these Reasons for Judgment to any therapist, psychologist or psychiatrist engaged by her.
NOTATION:
A.The expression “in writing” includes by text message, email or via the “our family wizard” or similar parenting application.
B.Orders 3, 4, and 7-14 inclusive are made with the consent of all parties.
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 Rivers & Rivers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
The applicant mother, Ms Rivers (“the mother”) seeks final parenting orders, including that the three children, X 11 years old, Y 10 years old, and Z 7 years old (“the children”) spend time with her, supervised by a maternal family member for six months, and then on an unsupervised basis, including overnight.
The mother has experienced poor mental health over an extended period of time, including when the children were younger and living with her. The mother has admitted that she behaved in a way that was scary, confusing and unsettling for the children. The mother says that her mental health is now stable and appropriately managed, and that the children are not at risk of harm if they spend time with her which is unsupervised.
The respondent father, Mr Rivers (“the father”) and the Independent Children’s Lawyer mutually submit that the children are at risk of physical and psychological harm if they spend unsupervised time with the mother. They rely on the fact that the mother has been diagnosed with borderline personality traits. They say that the mother has not demonstrated that she has accessed appropriate mental health supports, or complied with treatment prescribed or recommended for her mental health condition. They contend that the mother’s parenting capacity more likely than not remains impaired on account of her untreated mental health condition.
The key issue for the court is whether the children remain at risk of harm in the mother’s care, by being subjected or exposed to neglect and family violence, as a consequence of the mother’s diminished parenting capacity during the periods when she is experiencing poor mental health. Determination of the key issue depends on whether the mother has demonstrated that she has accessed appropriate mental health supports, and complied with treatment prescribed or recommended for her.
For the reasons which follow, the court is not satisfied that the mother has demonstrated that she has accessed appropriate mental health supports, or complied with the recommended treatment. It follows that the court cannot be satisfied that the mother has adequately addressed her mental health and, after careful consideration of the evidence, the court finds that, until such time as the mother can demonstrate that she has adequately addressed her mental health condition or conditions, in particular by undertaking the treatment recommended, the children will remain at an unacceptably high risk of harm in her care, and that professional supervision of the children’s time with the mother is required to ameliorate that risk.
BACKGROUND
The mother was born in 1986 and she is currently 36 years old.
The father was born in 1977 and he is currently 45 years old.
The parents commenced their relationship in 2010. The mother fell pregnant with X two weeks after meeting the father. Thereafter the parents were not in contact with one another again until about 2011 when X was about 4 months old. The parents married in 2013. They separated finally on 27 August 2017, and were divorced on 20 September 2018.
The parents’ relationship was an on-again and off-again one. There were periods of separation and reconciliation between early 2016 and final separation in August 2017. I accept that the mother’s poor mental health, evidence of which is addressed further in these reasons, was made worse by the turmoil in the relationship.
There are three children of the marriage:
(a)X born in 2011;
(b)Y born in 2012; and
(c)Z born in 2015.
On 12 April 2017 the father filed an Initiating Application seeking parenting orders, including that he have sole parental responsibility for the children, and that the children live with him.
On 20 April 2017 a final Apprehended Domestic Violence Order (“the ADVO”) was made against the mother for a period of twelve months, for the protection of the father and the children, in the mandatory terms only. It is common ground that after the ADVO was made the father returned to live with the mother and the children, where he remained until the parents finally separated in August 2017.
On 26 April 2017 the father filed a Notice of Discontinuance of the parenting proceedings commenced on 12 April 2017, and those proceedings were later dismissed. The father discontinued the proceedings because the parents intended to attempt a reconciliation.[1]
[1] Family Report paragraph 12
Following final separation in August 2017, the children lived with the mother and spent time with the father by agreement between the parents.
In August 2018 the father re-partnered with Ms K. He continued to maintain an intimate relationship with the mother. The father says that between November 2018 and mid-2019 the children stayed with him for five consecutive nights each fortnight. The mother disputes this. It is clear that the children spent time with the father regularly, although not always together with him at the same time. It appears that the mother often requested that the father take the children. Sometimes she allowed him to take the boys only. The mother’s text messages to the father reveal that she was distressed, disappointed and angry that he was spending time with Ms K. The mother verbally abused the father, to and in front of the children, and at times blocked him from contacting her by phone.
Between 4 November 2019 and 12 December 2019 the mother was admitted to City P Private Hospital for detoxification and treatment for her misuse of the prescription drug Lyrica. She was diagnosed with substance misuse disorder, chronic pain disorder and borderline personality traits.[2]
[2] Exhibit M
Following an incident on 23 February 2020 X and Y remained in the care of the father, while Z remained with the mother.
On 12 March 2020 the mother filed an Initiating Application seeking final parenting orders, including that she have sole parental responsibility for the children, and that the children live with her. Notably, the mother sought an order that she continue to attend upon her treating counsellor and GP, and attend all appointments and comply with any prescribed treatment regime and all reasonable directions of her treating practitioners. She proposed that the children spend time with the father each alternate weekend, half school holidays, every second Tuesday from after school until 7.00pm, and on special occasions. By way of interim relief the mother sought a recovery order in respect of the children X and Y.
In her affidavit affirmed on 9 March 2020 the mother said that she “thought of taking the boys from school and just keeping them, but I believe I should do it the right way this time. I am seeking that the court make orders for the return of the boys to my care”.[3]
[3] Mother’s affidavit filed 12 March 2020 at paragraph 74
On or about 16 March 2020, notwithstanding that the court had not made an order for the return of the boys to the mother’s care, she collected X and Y from school and retained them. Thereafter the children did not spend time with the father until July 2020, after interim orders were made.[4]
[4] Notes of the children’s counselling on 25 March 2021 record that X expressed that it was “definitely a possibility” that mum might take off with the children. Y said that if the supervisor went to the toilet “oh no, Mum would probably run us to the car and take off.” and that “sometimes she used to try and take us from school so we wouldn’t see our dad”: Exhibit J page 118
On 17 April 2020 the father filed a Response seeking final orders including that he have sole parental responsibility for the children, and that the children live with him. He proposed that the children spend time with the mother on the third weekend of every calendar month from 2.00pm Saturday until 4pm Sunday and on special occasions.
On 5 May 2020 interim orders were made that the children live with the mother and spend time with the father each alternate weekend and on Wednesday nights. The proceedings were adjourned for interim hearing on 22 July 2020. Pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) an order was made for the parents to attend a Child Dispute Conference, and the court appointed the Independent Children’s Lawyer.
On 3 July 2020 the parents spoke with family consultant Ms H, who prepared a Child Dispute Memorandum to the Court dated 3 July 2020 (“the Child Dispute Memorandum”) which is in evidence in these proceedings. Family consultant Ms H was not required for cross examination. The Child Dispute Memorandum records relevantly that:
·The mother conceded at times her “behaviour has been disgusting and there is no excuse for that”,
·It is common ground that the mother has attacked the father with a baseball bat and has kicked his door,
·The mother reported going to “swipe” the father on one occasion, describing this as resistant force,
·The children have witnessed these incidents,
·The mother concedes “smacking” Z, and accidentally scratching her on one occasion when washing her hair,
·The mother provided information that she “got angry” with Y and Z in when Y called the father, and Police later attended, and conceded that she “acted poorly” at that time,
·The mother described experiencing suicidal ideation in the past,
·The mother described becoming “hysterical” at times, and referred to an inability to cope and described “experiencing an escalation of those feelings during conflict with the father or when their communication breaks down”,
·It is agreed that the mother has made multiple threats of suicide and that she has made attempts to end her life,
·The mother reported that she was diagnosed with Borderline Personality Disorder (BPD), Anxiety and Depression during an admission to City P Private Hospital in November 2019. She takes Pristiq antidepressant medication as prescribed and described a history of “taking stuff on and off as I need it”. She described having “multiple mental health plans” historically, however her only service provider in July 2020 was a counsellor from T Counsellors,
·The mother said it has been recommended to her that she undertakes Dialectical Behavioural Therapy (DBT) but that she is unable due to costs and needing to work,
·The parental communication is currently poor,
·“The parents provided consistent, and concerning, information regarding the children, including that X displays significant anxiety and has been referred for psychological intervention, Y is increasingly withdrawn and quiet and has “shut down” since January 2020, and Z displays separation/attachment issues and dysregulated emotional behaviour”,
·The parents agree that the children, particularly X, have witnessed family violence/high conflict in the parental relationship.
On 27 July 2020, following an interim defended hearing on 22 July 2020, Her Honour Judge Costigan made interim orders including that:
(a)The children live with the father, and spend time with the mother supervised by B Contact Centre Children’s contact centre for not less than 2 hours each fortnight and, until B Contact Centre is available, supervised by C Contact Centre or D Contact Centre, with the parties to share the fees equally;
(b)The mother be at liberty to have FaceTime or Skype communication with the children on one occasion each week;
(c)In the event the mother elects to undertake DBT, she be at liberty to provide a copy of the Child Dispute Memorandum to her treating psychologist;
(d)The father keep Z enrolled in family day care at City P, and obtain a referral for a comprehensive paediatric assessment of Y; and
(e)Each parent be restrained from denigrating the other, or any member of the other’s family, within hearing of the children.
The children have lived with the father since July 2020, and have spent only professionally supervised time with the mother.
In late September 2020 the mother filed an Interlocutory Application to vary the interim parenting orders in which she sought to dispense with the requirement for supervision and increase the time the children spend with her. On 29 January 2021, following an interim defended hearing, the mother’s application was dismissed. Costigan J found that the mother had not adduced evidence sufficient to demonstrate that her mental health issues had been satisfactorily addressed.
The children have not spoken with the mother by phone or video since about January 2021. The father says that the children do not wish to speak with the mother and that she does not try to call them.[5] He says that he continues to encourage the children to call the mother on special days and that he sent a video to the mother on Mother’s Day, which X refused to join.
[5] Father’s affidavit paragraph 89
On 22 June 2021 a family report was prepared by Ms AB, Psychologist (“the family consultant”) and released to the parties (“the family report”).
On 3 August 2021 the father changed the children’s school enrolment from AC School to AD School City P, without consulting with the mother. On 3 September 2021 the mother filed an interim application seeking that the children be re-enrolled at AC School. The mother’s application was dismissed on 3 September 2021.
The children currently live with the father, and his partner Ms K, and her two children, L 12 years and M 9 years, in a six bedroom home on a half an acre block at Suburb AE.
The father is employed full time as a tradesman for a primary industry company. He works from Monday to Friday from 7.00am until 4.00pm. The father can work from home, when required, to assist with the care of the children.
The parents agree that the children each have special needs, and have been harmed by exposure to family violence. Since about March 2021 the children have been engaged in counselling with Ms AF at AG Counsellors at Suburb J (“AG Counsellors”).[6]
[6] Exhibit J contains the notes of the children’s counselling with AG Counsellors
On 3 December 2021 the Honourable Chief Justice Alstergren made an order listing the matter for hearing, and made trial directions including, relevantly, that the mother file and serve any further affidavit to be relied upon by 4.00pm 28 days prior to the final hearing, and that the parties file and serve an outline of case document by 4.00pm 2 days prior to the final hearing. The mother was legally represented when the trial directions were made.
The mother did not file her trial material and, as a consequence, neither the court nor the other parties have had the benefit of evidence in chief from the mother about her current circumstances or the key issue.
The final hearing proceeded on 22 August 2022, 23 August 2022, and 31 October 2022. Final submissions were heard in the late afternoon on 17 November 2022.
LEGAL PRINCIPLES IN PARENTING PROCEEDINGS
Parenting orders are made under the provisions of Part V11 of the Act. Section 60B of the Act sets out the objects of Part VII and the principles underlying the objects.
When making a parenting order the court must regard the best interests of the child as the paramount consideration.[7] In determining a child’s best interests, the court must consider the matters set out in s 60CC.
[7] Section 60CA
The two primary considerations[8] the court must consider 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.
[8] Section 60CC(2)
When applying the primary considerations the court must give greater weight to the need to protect the children from physical or psychological harm, than to the benefit of having a meaningful relationship with both parents.[9] The court must ensure that any parenting order it makes does not expose a person to an unacceptable risk of family violence.[10]
[9] Section 60CC(2A)
[10] Section CG(1)(b)
The court must also consider a number of additional considerations, when they are relevant to the particular circumstances of each case.[11]
[11] Section 60CC (3)
When making a parenting order the court must consider whether to apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child, or whether the presumption has been rebutted.[12] Depending on what order, if any, that the court makes in relation to parental responsibility for a child, the court may be required to consider whether it is in the best interests of the child and reasonably practicable, for the child to spend equal time or substantial and significant time with each parent.[13]
[12] Section 61DA
[13] Section 65DAA
CONDUCT OF THE HEARING
The mother appeared in person and was not legally represented. She was refused a grant of Legal Aid by letter dated 17 August 2022, because she is not eligible under the Legal Aid NSW income test.[14] As noted previously, the mother did not file her trial material. The court permitted the mother, at her request, to rely on certain passages of evidence which she had provided in two affidavits filed previously in these proceedings.[15]
[14] Exhibit G
[15] Affidavit of mother filed on 30 September 2020, confined to paragraphs 33 to 43 inclusive; and Affidavit of mother filed on 9 March 2020, except paragraphs 46 to 48 inclusive.
Mindful of the court’s obligations when conducting a trial involving a litigant in person, the court provided the mother with information about the trial process and arranged for her to be provided with a copy of the relevant sections of Part VII of the Act, prior to the commencement of the evidence.
The court informed the mother that documents produced on subpoena, particularly material relating to her mental health and treatment, and records from the children’s contact supervision service, were likely to be relevant to the issues and may be tendered into evidence. The mother was provided with a hard copy of the proposed tender bundle to inspect in the courtroom. The matter was stood in the list so that the mother could read those documents, and so she would have an opportunity to speak with the Duty Lawyer at the court.
The father was represented at the hearing by Mr Duane of Counsel.
Solicitor Advocate Mr Squires appeared as the Independent Children’s Lawyer.
PROPOSALS OF THE PARTIES
The mother’s proposal
In her Initiating Application filed on 9 March 2020 the mother sought final parenting orders that she have sole parental responsibility for the children, that the children live with her and spend time with the father.
At the commencement of the hearing the court asked the mother to articulate what final parenting orders she seeks. The mother conceded that she no longer seeks an order that she have sole parental responsibility for the children, or an order that the children live with her. She said that the order she seeks are that:
(a)The parents have equal shared parental responsibility for the children;
(b)The children spend time with the mother, supervised by D Contact Centre every fortnight for the next six months;
(c)Thereafter, for a further six months, the children spend supervised time with the mother, conducted by maternal family members;
(d)Thereafter, for six months, the children spend unsupervised time with the mother, during the day for four or five hours; and
(e)Finally, unsupervised overnight time.
The mother said that she agrees with the orders sought by the father which are set out in clauses 2, 5 and 6-13 inclusive of his Amended Response filed 9 August 2022. As the Independent Children’s Lawyer also sought similar orders, those orders will be made by consent.
During her final submissions the mother altered her position and said that she seeks an order that for the next six months the children will spend time with her each fortnight for four or five hours, say from 9am until 3pm, on either Saturday or Sunday, supervised by a maternal family member, and that thereafter the children spend time with the mother overnight and unsupervised.
The father’s proposal
The father sought final parenting orders as set out in his Amended Response filed on 9 August 2022, in summary that:
(1)The father have sole parental responsibility for the children, subject to him consulting with the mother about major decisions for the children.
(2)The children live with the father.
(3)The children spend four hours supervised time with the mother around Mother's Day, Easter Monday, Boxing Day, the Mother's birthday, and each child’s birthday, and that such time occur seven days before or after the relevant day, supervised by D Contact Centre, or such other professional supervised contact centre as agreed, and the mother pay the costs of supervision.
(4)The father facilitate telephone communication between the mother and the children at the request of the children, not later than 6.30pm on any day.
(5)Notifications, information exchange, authorities, liberty to attend school functions, and restraints, which are set out at clauses 6-13 of his Amended Response, noting that the mother and the Independent Children’s Lawyer agree with those proposed orders.
The proposal of the Independent Children’s Lawyer
The position of the Independent Children’s Lawyer changed during the course of the hearing.[16] During final submissions the Independent Children’s Lawyer tendered a Minute of Order setting out the final parenting orders he seeks.[17] The essential difference between the proposal of the Independent Children’s Lawyer and the father is that the father seeks orders for the children to spend time with the mother supervised, within 7 (seven) days of seven specific occasions throughout each year, whereas the Independent Children’s Lawyer seeks that supervised time continue each alternate week for the next twelve months, then reduce to once each month for a further six months, and thereafter on one occasion each alternate month.
[16] Compare Exhibit F tendered by ICL on 23/8/2022 and Exhibit 1 tendered during final submissions on 17/11/2022
[17] Exhibit 1
As noted, the Independent Children’s Lawyer supports the proposed orders which are set out at clauses 6-13 of the father’s Amended Response, which will be made by consent.
The Independent Children’s Lawyer seeks the following additional parenting orders:
(a)The parents must use the “our family wizard’ application or a similar co-parenting application, to communicate on any matter relating to the children’s health, development, education, attendance at extra-curricular and sporting activities;
(b)Forthwith, the father must cease the children’s continued attendance upon “AG Counsellors” and the parents must obtain a referral for the children to attend upon “Company AH” or similar suitably qualified therapist for the children to participate in family counselling, with the intention of supporting the implementation of the Court’s orders;
(c)The father and mother be permitted to supply a copy of the Family Report, reasons for Judgment, and a copy of the final Court orders to the children’s treating therapists; and
(d)The mother is permitted to supply a copy of the Family Report and reasons for Judgment to any therapist, psychologist or psychiatrist engaged by her for the purpose of supporting her ongoing therapy.
ISSUES IN DISPUTE
The issues which require determination by the Court are:
(a)The spend time arrangements for the children with the mother, and the related issues of:
(i)The benefit to the children of having a meaningful relationship with both parents;
(ii)Consideration of the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence;
(iii)Whether the mother has demonstrated that she has adequately addressed her mental health needs; and
(iv)Whether supervision of the children’s time with the mother is necessary to protect them from risk of harm, and if supervised time is required what orders are appropriate.
(b)Whether the parents will use a parenting communication application such as “our family wizard”.
(c)Whether the father must cease the children’s attendance on AG Counsellors and whether the parents will be required to obtain a referral for the children to attend upon Company AH and participate in family counselling.
(d)Whether the parents will have permission of the court to provide a copy of the family report, Reasons for Judgment and final orders to the children’s treating therapists;
(e)Whether the mother will have permission of the court to provide a copy of the family report and Reasons for Judgment to any therapist, psychologist or psychiatrist engaged by her for the purpose of supporting her ongoing therapy; and
(f)The allocation of parental responsibility for the children.
The spend time with arrangements for the children with the mother
Consideration of the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence
The court accepts that the mother was the primary caregiver for the children for many years. The mother loves the children very much. I consider that the mother genuinely cares about the children, and that she wants to play an important role in their lives. The mother wants to participate in making decisions about major long term issues affecting the children, and she wants to spend regular time with them and be involved in their daily routines and to share special occasions and events of significance with each child. The mother wants the children to know that she loves them and cares about them.
From the manner in which the mother conducted herself in court, I formed the impression that she is a pleasant, hard-working, and competent person. She has the capacity to be emotionally well-regulated.
I accept that the mother has never deliberately set out to harm the children. For the reasons which I hope will become clear, I find that during times when the mother has been challenged or has felt threatened in an interpersonal context, she has become distressed, highly emotional, dysregulated in her behaviour towards others, and hostile. When in that condition she is unable to prioritise the children’s wellbeing. At times she has physically abused the children and neglected their emotional needs. At times she has exposed the children to family violence. In doing so the mother has unintentionally caused harm to the children. I consider that presently the mother lacks insight into her mental health condition, and that she struggles to take full responsibility for her actions. The mother has been reluctant to accept the diagnosis of borderline personality traits and to undertake the treatment for that condition.
I accept the evidence of the family consultant that:
“Whilst the mother may not meet full DSM-V criteria for Borderline Personality Disorder and may well be able to present under the right conditions, as a highly functioning and well- regulated adult, clearly there is enough evidence to demonstrate that she demonstrate (sic) several traits which characterise Borderline Personality traits. Borderline Personality Disorder is often a misused and poorly understood condition. It should be remembered that having Borderline Personality Disorder is not deliberate. It is not a diagnosis people choose to have. It is often associated with a great deal of confusion and enormous sense of shame because the individual can be highly functioning, compassionate, and nurturing until they are triggered and become dysregulated, volatile, and erratic”.[18]
[18] Family Report paragraph 137
During the mother’s cross examination of the family consultant, Ms AB reiterated her recommendation that the mother engage in a program of Dialectical Behavioural Therapy (“DBT”). Ms AB said that the skills learned in DBT would fit the mother’s situation and assist her to learn how to interact with others.
The mother does not accept the diagnosis of borderline personality traits and she appears intent on having that diagnosis struck from her medical records.
To assess whether the children remain at risk of harm in the care of the mother, it is necessary to focus on her history, including her clinical presentations over time. Regrettably such focus is bound to be uncomfortable for any parent in the mother’s position. The focus is intended to illuminate the issue of the mother’s condition and behaviours, and is not to demonise or denigrate the mother. The focus does not overlook the mother’s many positive strengths and qualities. I accept the evidence of the family consultant that,
“…the mother expressed a wealth of information about the children in a deeply caring and nurturing manner….There is much for her to gain if she can find the courage to return to her therapist to work out ways to be the parent, she knows she can be.”[19]
[19] Family Report paragraph 138
The mother admits that she had a tough childhood. She reported that she was diagnosed with depression and anxiety and that she experiences trauma secondary to family violence.[20] She is the seventh of eleven siblings and has described her family environment as miserable, violent and neglectful.[21]
[20] Family Report paragraph 34
[21] Family Report paragraph 39
Through no fault of her own, the mother’s adverse childhood experiences have had a negative impact on her mental health. The mother has had ongoing issues[22] including in 2010, when she was 23 years old, and having “explosive angry outbursts” which caused difficulties at work. The mother attended six sessions with a mental health nurse. The focus of treatment was to assist the mother “to understand the issues that were underlying her emotional outbursts - particularly angry outbursts - and leading to negative outcomes in her life”.
[22] Exhibit GG: The mother’s psychologist at G Psychologists on 29 July 2020 recorded “complex trauma???”
The outbursts continued, and were not confined to work situations. In 2016 the mother yelled abuse at the father in front of the children, while waving a baseball bat at him, and the children were crying and yelling at her to “shut up”.[23]
[23] Father’s affidavit paragraph 44
In 2015, when Z was five months old, the mother was admitted to U Hospital in City AJ. The hospital notes record that the mother had:
“…serious polypharmacy OD of prescribed medications … following conflict with her partner and did not attend the CMHS follow up”.[24]
[24] Exhibit V
The primary diagnosis was deliberate self-poisoning, with secondary diagnoses of situational crisis and major depressive episode arising in peri partum (post-natal) period.[25]
[25] Exhibit L
On 13 April 2017 the mother requested that the father help her care for the children. When he declined she threatened to kill herself. The father collected the children from the mother.
On 14 April 2017 the mother was conveyed to the City P Hospital by police,[26] after police apprehended her pursuant to s 22 of the Mental Health Act 2007 (NSW). She had sent a message to her sister stating that she wanted to kill herself. Her sister contacted the police. The mother admitted sending the message, and told the police, “I’ve had enough, I’ve lost everything”. The police records note that the mother became upset, hostile and abusive.
[26] Exhibits K and P
Progress and clinical notes from City P Hospital record that the mother was:
“…threatening to kill herself via text to sister, on a background of relationship break up. AVO served today in ED saying [Ms Rivers] cannot have contact with her x3 children or partner. On assessment pt denied SI. And was uncooperative with the process of admission…has a hx of depression-spent 3 days in the Mater as a result of DSH attempt 18/12 ago. Risk-Medium to self and others…struggling with bad mood swings-goes angry…to upset. Up and down. unable to control. When angry-gets verbally aggressive-yelling, throwing things, smashing things...Good insight and seeking support”. [27]
[27] Exhibit P
On 8 June 2017 the mother’s General Practitioner (“GP”) referred her to the Mental Health Contact Centre for opinion and management due to worsening anxiety and depression symptoms. The assessment[28] relevantly records:
“Intermittent SI with no plans and intent. Severe anxiety with panic attacks…Anxiety and depression affecting day to day functioning….Struggling with mood swings”.
[28] Exhibit T
On 15 June 2017 Dr AK, Psychiatry Registrar, noted that the mother:
“…has limited insight into her problems and behaviour and she needs further psychological supportive therapy and psychoeducation”.[29]
[29] Exhibits V and X
Dr AK also noted that the mother “declined to follow up with CMHS as she did not find helpful”. The mother was advised to continue on Lexapro with increasing doses, and to trial a short term Quetiapine to alleviate her anxiety and insomnia, and to continue with the psychological support already in place.
On 2 September 2017 the mother attended at the father’s residence with the children. She yelled at him, argued with him, and kicked at his door several times. The father reports that the children were screaming and upset and that police attended.[30]
[30] Father’s affidavit paragraph 45; Exhibit K
On 5 September 2017 the mother attended her GP and reported that she had been struggling with anxiety, taking care of the kids but struggling.[31] The GP referred the mother to a psychiatrist and psychologist. The GP notes record that the mother became upset and told the GP that “she need something which she can go through the day” (sic). The GP advised the mother to go to the hospital emergency department. The GP notes “says had bad experience in the past with Hospital Presentation. She left the consultation crying that won’t see Psychologist”.
[31] Exhibit W
On 10 October 2017 Region V Mental Health Service wrote to Dr AL at Suburb AM Medical Practice informing the doctor that the acute care team had made two appointments for the mother to see Dr AN, and the mother had not attended. As a consequence she was discharged from the acute care team. Dr AN recommended that, in addition to antidepressant medication, it was very important for the mother to address “the psychological distress and other aspects-psychology, behavioural activation, etc” and emphasised that “medications on its own isn’t going to address the psychological distress”.[32]
[32] Exhibit O
On 28 August 2019 Y called the father crying and upset and told him that the mother had scratched and pinched him because he was arguing with Z. The father says that he observed bruises on Y’s arms and torso when he next saw him.[33]
[33] Father’s affidavit paragraph 48
On 4 November 2019 the mother was admitted to City P Private Hospital[34] and remained a patient there until 12 December 2019.[35] The goal of treatment was to address the mother’s dependence on Lyrica, prescribed for painful bladder. The records reveal that the mother had had been misusing Lyrica for four years. The Discharge Summary records that the mother “attempted home detoxification (unsuccessfully). Despite medications to ease withdrawal symptoms, she was quite incapacitated by same”. It was noted that “As medications reduced, …[the mother]...struggled with managing emotions”.
[34] Exhibit Q
[35] Exhibit M
The mother was diagnosed with Substance Misuse Disorder, Chronic Pain Disorder and borderline personality traits.[36] She was discharged from hospital prior to completing treatment, at her request and against medical advice.[37] Upon discharge, the mother was prescribed a number of medications including Gabapentin 300mg BD. She was referred to her GP and Psychologist. The discharge summary records that the mother “would benefit from anxiety and DBT Day Program”. The children were in the father’s care while the mother was in hospital and returned to her care immediately upon her discharge on 12 December 2019.
[36] Id
[37] Mother’s affidavit 9 March 2020 paragraphs 50, 54
On 21 December 2019 the mother sent the father a text message which read “come and get Y ASAP before I completely lose it”.[38]
[38] Father’s affidavit paragraph 33
On 22 December 2019 the mother messaged the father saying that she was:
“sick to death of [Z]…she has been smothering me to death since she was born and I have never had any help. Even when I begged you and told you I was ready to kill myself to get away from it.” [39]
[39] Father’s affidavit paragraph 34
On 3 January 2020 the father says that Y told him that the mother had scratched him across the side because he was being silly with Z. The father took pictures of the scratches.[40] The father says that Y did not want to return to the mother and told the father “I am scared to be with mum all the time.”[41]
[40] Father’s affidavit paragraph 49
[41] Father’s affidavit paragraph 51
On 24 January 2020 when X was with the father, and Y and Z were with the mother, the mother messaged the father and wrote, “I won’t be here much longer…” and, “I am not going through it again. I have taken every single tablet in the house”. The father, and X, went to the house where he found the mother in bed but alert. The father stayed the night “to monitor the situation”.[42]
[42] Father’s affidavit paragraphs 35-36
On 30 January 2020 the mother told the father about her attempts at suicide in 2019. She later sent him a text message which read, “Next time I won’t fail. Next time I won’t ask for help. Next time you will know it is entirely YOUR fault and it always will be.”[43]
[43] Father’s affidavit paragraph 37
On 31 January 2020 the mother sent the father a message which read, “it’s happening again, I can’t get out of bed. You should take the kids”. The father collected the children.[44]
[44] Father’s affidavit paragraph 38
The mother denied in cross examination that she found it more challenging to care for the children when she was struggling with her mental health. She said “not necessarily” and that the challenges were predominantly when she was on her own. The mother appeared to lack insight into the nature of her illness, in particular her maladaptive coping strategies, and the impact of her behaviour on the children, and she sought to minimise the adverse impacts of her unmanaged mental health and her conduct on her parenting capacity.
On 31 January 2020 the mother left X and Y home alone, and took Z to pre-school,[45] where Z disclosed that the boys had been left at home alone. Police were called, attended the home and took the older children to the police station. The mother removed Z from pre-school following this incident. The mother told family consultant Ms H that she “could not trust her being there, they should have contacted me first.”[46]
[45] Mother’s affidavit 9 March 2020 paragraphs 64-67
[46] Child Dispute Conference Memorandum to Court paragraph 6
The mother’s account of leaving X and Y home alone on 31 January 2020[47] demonstrates that she is unwilling or unable to accept full responsibility for her conduct. She seeks to justify her decision to leave the children home alone, and is critical of the police officer who “lectured” her. Her evidence demonstrates a lack of empathy for an eight year old and a seven year old child being left alone at home, and a failure to appreciate the risks to the children. The court agrees with the assessment of family consultant Ms H that the mother’s response to this incident is concerning.[48]
[47] Mother’s affidavit 9 March 2020 paragraphs 64-72
[48] When the mother left the boys at home alone and Z’s report to the pre-school lead to the police taking the boys to the police station
On 23 February 2020 Y called the father and sounded extremely upset. He told the father that the mother was beating him and Z, and that he was hiding. The father could hear the mother yelling in the background, and tried to call her but he could not get through. Y again rang the father and was screaming for the father to come and collect him. The mother came onto the phone and told the father to come and get Y, and said that she did not want Y there. The father attended the mother’s home with X, whereupon Y came through the front door, which the mother shut behind him. Y was crying uncontrollably. Y told the father that the mother was hitting Z. The father did not know what to do, and took Y to City P Police Station around 8.20pm.[49]
[49] Exhibit K
The police attended at the mother’s home, where the mother is noted to have advised “…that she yelled at her daughter earlier for throwing her phone but that was it, nothing physical had occurred”. Police conducted a welfare check. Z was asleep and appeared to be okay.[50] Following this incident X and Y remained in the care of the father and Z remained with the mother.
[50] Father’s affidavit paragraphs 57-60
The mother’s evidence about the incident on 23 February 2020 is that Z was overtired and had a tantrum. Z threw a phone at the mother, which hit the mother on her temple and stunned her. The mother jumped up, and Z turned and ran. The mother says that she chased Z, caught her and gave her a smack on the bottom. The mother says that:
“I felt myself getting angry so I turned and went back into my bedroom and shut the door for a few minutes to calm down. [Z] was getting angrier and more frustrated and was kicking and banging on the door to come into me. After a few minutes I opened the door and asked [Z] to stop banging on the door and give me a minute. She then went to go into the room and I blocked her from coming in. I shut the door again. After a few minutes I opened the door again, [Z] came in and we laid on the bed together”.[51]
[51] Mother’s affidavit 9 March 2020 paragraphs 10-13
When the mother left her bedroom she saw Y on Skype to the father. She could see that Y was upset. Z came out, saw Y and she became upset again. The mother walked over and grabbed the tablet from Y.[52] The mother says that the father’s camera was off, “so I knew that Mr Rivers was at his girlfriends”. The mother became upset and said to the children “look he is at his girlfriend’s and he doesn’t give a shit”. The mother swore at the father and ended the call. The mother “was really angry. I honestly can’t remember what I was saying”.[53] About half an hour later there was a knock on the door, Y went to the door and opened it. The father was standing there. Y ran to the father and the mother shut the door after him. The mother says that she was angry and sent the father abusive messages, which she regrets, and that later that night the police attended her home for a welfare check.
[52] Ibid paragraphs 13-14
[53] Ibid paragraph 16-17
When it was put to the mother during cross examination that she was loud and yelling in the presence of the children the mother replied “I am a naturally a loud person. I am one of 11 children. I can be loud and can yell”. I consider that by her answer the mother sought to minimise her behaviour and to convey an impression that her loud voice might cause others to misinterpret her behaviour.
The mother denied scratching the children, volunteering that she has long fingernails and could have inadvertently scratched them. She denied causing any marks or bruising to Y, and volunteered that he has seen paediatricians in relation to his kidney function and he bruises easily.
When she was asked about pictures X drew during a counselling session on 6 May 2021 depicting the mother hitting the children,[54] the mother said that she doesn’t agree that she has hit the children, and said that the children only ever see the counsellor when in the care of the father, implying that the children’s reports are unreliable.
[54] Exhibit J page 120
When asked about Y’s disclosures to the counsellor that the mother hit the children with her hands[55] the mother answered, “No, we did not smack the kids”. Her evidence is inconsistent with her concession to “smacking Z” when she spoke to family consultant Ms H on 3 July 2021. Later on in her oral evidence the mother said “Yes I have admitted to smacking Z on one occasion”.
[55] Exhibit J
After the interim parenting orders were made on 27 July 2020, the father says that the mother verbally abused the children when they would not stay on the video call with her for the full time provided in orders. He says that the mother criticised the children for living with him and denigrated the father and Ms K to the children. He says the mother spoke with the children about their living arrangements and the court proceedings. I accept the father’s evidence and note that he was not challenged about it.
During her oral evidence the mother said, “I have made a considered effort in the last 18 months, since court started, to not engage in communication with the father and his partner.” When it was put to her that she has been angry with the father and his partner in the children’s presence she said, “Not at his partner. I’ve seen her once prior to court.”
In her affidavit the mother says that the father has a “history of taking the children away from me”. She references 2017, when she “was really struggling” and, “Mr Rivers took the kids from me… for two weeks”.[56] I infer that the mother is critical of the father for keeping the children with him. I note that the father retained the children in his care from time to time during periods when the mother was hospitalised or very unwell. Psychiatrist Dr AK recorded that the mother had limited insight, and recommended that she have psychological support, therapy and psychoeducation. In September 2017 the mother declined to take the advice of her GP, while struggling with anxiety and the care of the children. She refused the referral to a psychiatrist and ignored advice to attend the hospital.
[56] Mother’s affidavit filed 12 March 2020, paragraph 23
I consider that the mother seeks to attribute her struggles with her mental health, at least in part, to the father taking the children away from her, and in doing so implies that the father acted unreasonably. The mother’s evidence of the children’s experiences while in her care demonstrated a lack of child focus, and a lack of insight into how her conduct has impacted on the children. Her primary focus appeared to remain on the issues in her relationship with the father. She has demonstrated little awareness of, or empathy for, the children’s experiences.
Although the mother accepted that the children have been upset by things that have happened, and agreed that the boys in particular have a difficult relationship with her, the flavour of her evidence, and her cross examination of the father, revealed that she attributes the children’s difficult relationships with her to the father and contends that he is not encouraging or supporting the children’s relationships with her. The mother struggles to accept the probability that the children’s lived experiences while with her are more likely the cause of the difficulties that they now have in their relationships with her. The family consultant noted that the mother “…held a strong view that the father was attempting to disrupt her relationship with the children”.[57]
[57] Family Report [46]
Having seen and heard the father in the witness box, including observing his genuine distress when discussing the children’s disclosures of their experiences while in the household of the mother, and his distress at having witnessed the children’s distress and behavioural issues after they came into his primary care in mid-2020, I am satisfied that the father is not attempting to disrupt, or actually disrupting, the children’s relationships with the mother. I consider it more likely than not that the children’s difficulties are primarily attributable to what they have witnessed and experienced.
During cross examination the mother said that “I absolutely acknowledge my behaviour was poor but not daily” and “I don’t agree I was dysregulated all the time”. The mother fails to appreciate the impact on the children of seeing her behave poorly, and of being reliant on her care while she was emotionally dysregulated, even if only from time to time.
The children’s views and their relationships with each parent
X and Y were interviewed by the family consultant on 26 May 2021. Actual allegations made by the children were not individually identified to each child due to a concern that the mother would either interrogate, rebuke or punish them.[58] The family consultant commented that “…the mother presented as a warm and caring parent. It was extremely surprising to observe the children with her and to hear their views about family life”.[59]
[58] Family Report [67]
[59] Family Report [46]
X reported that the mother was physically abusive towards the children and that the mother gets “more angry” than Dad. X said that the mother argues a lot. X described that he didn’t have a voice when he lived with the mother, and that when he is around her he feels scared. X reported to his counsellor[60] on 16 November 2021, that the mother has said unkind things about the father in his presence during supervised contact visits.
[60] Exhibit J page 126
X told the family consultant that he wanted to see the mother but not at her home, and that he would like someone to supervise his time with her.
Y was clear that he did not want to spend time with the mother unless it was supervised. He said he would prefer the time to be in a park or somewhere other than at the mother’s home. The family consultant reported that “Y appeared to be the most impacted by the mother’s mental health and abuse …”.[61]
[61] Family Report [115]
The views expressed by X and by Y when speaking with the family consultant are consistent with their views expressed during their counselling sessions with Ms AF, which are recorded in the notes produced by AG Counsellors.[62] The notes make for distressing reading. Both boys describe memories of the mother hitting the three children, yelling at the children, throwing things at the children, threatening the children that she will harm them and hurt them, and on one occasion telling the children that she was going to kill them, and the children hiding together in fear.
[62] Exhibit J, for example at pages 118, 119, 120, 122, 124, 126
X and Y have consistently reported that they feel safe with the father and unsafe with the mother.
The family consultant did not interview Z because she seemed shy and timid.
In May 2021 X and Y were observed by the family consultant to be “extremely reluctant” to join the mother in the observation room, and they sat together on a single chair, not on the couch where there was space next to the mother. Y barely said anything to the mother, and made no effort to make conversation with her and sat looking sad. He eventually warmed up and engaged in some limited conversation with her. X answered the mother’s many questions with one word and without enthusiasm, and later provided her with some more extended responses. X played a game of AO with the mother.
Z was extremely happy to see the mother, and gave her a hug. The family consultant observed that Z was clearly more closely attached to the mother than the boys.
It is common ground that X ceased attending the supervised visits with the mother in about June 2022. Y is displaying increasing reluctance to spend time with the mother, although the mother said that since X stopped attending the visits Y has been more enthusiastic.
The father says that Z’s behaviour following supervised sessions with the mother has often been unsettled. Z’s behaviour during some supervised visits with the mother is observed to be erratic, and on occasions it has been observed that the mother has had difficulty managing Z’s behaviours.
Notes of the supervised visits have been produced by D Contact Centre and are in evidence.[63] The notes generally depict the mother as a warm and responsive parent, and the court is in no doubt that she can be. It is to the mother’s great credit that she has maintained her regular attendance at and participation in the supervised visits, notwithstanding the challenges and expense entailed. Supervision of a child’s time with a parent is generally not intended to be a long term order. Supervision is more commonly used to assist a child to maintain their connection with a parent while that parent attends to the issues that have given rise to the concern that unsupervised time with that parent may place the child at risk of harm.
[63] Exhibit I
The mother’s interactions with the children during the supervised contact visits are certainly one part of the picture, but are not determinative of the issue of whether the children are at risk of harm in the care of the mother, in light of the whole of the evidence.
The mother admits that she took a video of X during a supervised visit without asking him. She said she understood that this was frustrating for X. She agrees that she approached the father and the children prior to a supervised visit, and said “Didn’t realise Mr Rivers was standing there with the children, didn’t recognise him. I hugged Z and walked back”. Some aspects of the mother’s conduct, while she may not intend it, appear to trigger X and Y’s anxieties in particular.
The family consultant observed that the children were extremely relaxed and happy with the father.
Has the mother demonstrated that she has adequately addressed her mental health needs
To her credit the mother has completed a number of parenting programs. The majority of the programs were completed in 2020[64] and include 123 Magic Parenting Program, Circle of Security Parenting, Up to Parents (online), Advanced Parenting Skills, ParentWorks (online), Talk Less Listen More (online) and Triple P Online. The mother demonstrated, during cross examination by the Independent Children’s lawyer, that she has benefitted from completing the parenting courses and it appeared that she has gained further understanding of the children’s needs. However the goals of the parenting courses do not include addressing the mental health needs of the mother, or treating any mental health condition she suffers.
[64] Exhibit 2
Unfortunately, due to the manner in which the mother conducted her case, and for the reasons which follow, I am unable to place any weight, in these proceedings, on the opinions expressed by the mother’s current treating Clinical and Health Psychologist Dr AP[65] or Consultant Psychiatrist Dr AQ[66].
[65] Exhibit 5
[66] Exhibit FF
Neither Dr AP nor Dr AQ provided an affidavit to the court. There was no notice to the other parties that the mother intended to seek leave to rely on either report. There was no opportunity to test the evidence of either practitioner in cross examination. Ultimately the reports were accepted into evidence for the purpose of enhancing the court’s understanding of the nature of any treatment the mother has been provided.
It is beyond doubt in these proceedings that the mother has suffered mental health issues for many years. She had a traumatic upbringing. She has experienced difficulties in her interpersonal relationships for many years, including angry outbursts at work. She has suffered from suicidal ideation, made threats of self-harm and on at least one occasion she has self-harmed by overdosing on her medication. The mother has been treated over time with anti-depressant and anti-anxiety medications. Between about 2015 and November 2019 she misused Lyrica and was dependent on it, which required her to be admitted to hospital to address that dependence. The mother discharged herself prior to completing the treatment. It was at this time that she was diagnosed with borderline personality traits and recommended to undertake a program of DBT.
The mother has struggled to cope with the care of the children, and the breakdown of her relationship with the father. She has yelled at the father in front of the children, kicked at his door with the children present, verbally abused and denigrated him in front of the children, yelled at the children, and on her own admission she has hit at least one of the children while very angry. She has left the 8 and 7 year old boys home alone and appears not to understand the gravity of that situation.
Her Honour Judge Costigan noted in her reasons, which were delivered on 27 July 2020 that “The mother’s attitude to DBT appears to have been equivocal”.[67] On 29 July 2020 the mother’s psychologist noted that the mother, “Would like to have the BPD diagnosis taken from the record. Will speak to her psychiatrist about this.”[68] Having had the opportunity to consider the evidence at the final hearing, I consider that the mother is unwilling to accept the diagnosis of borderline personality traits and that she does not see a need for her to have appropriate treatment for that condition.
[67] Rivers & Rivers [2020] FCCA 2052 – paragraph 94
[68] Exhibit GG
The mother’s evidence in chief about her mental health[69] is that, at least in 2020, she had a case manager from City P Family Support,[70] she was engaged in a domestic violence program through AR Centre, she engaged in counselling sessions with a Psychologist at G Psychologists from 8 July 2020,[71] she was participating in individual counselling with T Counsellors,[72] and she had made an appointment with a psychiatrist Dr AQ.[73]
[69] as at 30 September 2020
[70] Exhibit 4 demonstrates that the support that the mother received from City P Family Support was limited to three meetings. The mother referred herself to City P FS to attend the Circle Of Security Parenting Program, which she completed. The first meeting was and initial meeting, the second meeting was to complete a case plan to set goals for the work, which was to provide one on one individual 123 Magic and Emotional Coaching Parenting program and general support.
[71] Exhibit 5
[72] Exhibit 3 indicates that the mother engaged in 1 hour counselling sessions twice in November 2018, at least monthly from January 2019 until July 20919 and at least monthly between February and August 2020, with 3 sessions in May 2020
[73] Mother’s affidavit 30 September 2020 paragraph 33; Exhibit FF is a letter from Dr AQ to the mother’s GP dated 19 November 2020, after Dr AQ saw the mother.
The mother has been reluctant to take prescribed medication and has expressed her concern about side effects, in particular weight gain.[74] The mother was recorded as “obese” in June 2017.[75] Dr AK suggested to the mother that she stop taking Duromine which had been given by a GP to reduce weight. To the mother’s credit she has managed to attain a healthier weight since that time.
[74] Exhibit V
[75] Exhibit T
In his report addressed to the referring doctor Dr AS at Town AT, Dr AQ notes that the mother described the father as “narcissistic”. Dr AQ writes that, “…from what she described about his behaviours, it would seem this observation may be right”. Dr AQ has not had the benefit of seeing or hearing the father, or assessing him. There is no indication in Dr AQ’s report that he is aware that the mother was diagnosed with borderline personality traits in November 2019. On the contrary, Dr AQ comments that he was “unable to illicit (sic) any history of mental illness either in her history or current mental state”. That comment raises considerable concern that Dr AQ has not been briefed with the evidence of the mother’s history of mental health difficulties, including her admitted long history of anxiety and depression. Curiously Dr AQ reports that “my practice manager, who has a long career in mental health, did not notice any obvious disturbance when … [the mother]… was in an unguarded situation at the front desk….” . Dr AQ is clearly not privy to the mother’s mental health history, and the court is unable to place any weight, in the current proceedings, on his opinion.
The counselling sessions that the mother has had with Dr AP, and her previous Psychologist Ms F, since 8 July 2020, have reportedly “adopted a Dialectical Behavioural Therapy (DBT) based approach”. Dr AP states in her report, dated 11 January 2021, “I support the recent assessment made by Psychiatrist, Dr AQ in November 2020 that Ms Rivers does not currently meet criteria for Borderline Personality Disorder, nor does she present with any persistent mental illness that would inhibit her parenting ability at this time”. I am unable to place any weight in these proceedings on the opinion of Dr AP, noting that she has relied, at least in part, on the opinion of Dr AQ.
I consider that the inclination of the mother to attribute to the father responsibility for her mental health struggles, and the impacts on the children of her conduct[76] is further exemplified in the reports of the consultations with her psychologist at G Psychologists[77]and with Dr AQ.[78]
[76] Exhibits GG & FF
[77] Exhibits GG
[78] Exhibit FF
The mother told the court in submissions that she believes that she may qualify for a diagnosis of bipolar disorder or “ADHD”[79]. On 25 July 2022 the mother’s current GP[80] referred the mother to Dr AU for opinion and management.[81] The GP letter of referral reports that the mother’s presenting problem is:
“…concerns about being hyperactive and easily distractible with this significantly affecting work productivity with requests to be assessed for adult ADHD. She also reports being anxious in social situations and group settings. I have commenced her on escitalopram.”
The letter notes relevant past history of panic attacks, anxiety generalised. There is no mention of history of diagnoses of borderline personality traits or depression. The court is concerned that the mother’s current GP has not been made aware that the mother was diagnosed with borderline personality disorder traits in late 2019.
[79] Which the court understands refers to the condition Attention Deficit Hyperactivity Disorder
[80] Dr AV at AW Medical
[81] Exhibit D
The mother said during her oral evidence that she has a referral to a psychiatrist, and plans to get treatment “but not specifically in relation to…yeah”. When it was put to the mother that she doesn’t have evidence of her current treatment she said:
“I went through what was required, followed up with diagnosis. My behaviour has not been of concern to people who are supervising me. Mental health doesn’t have an end date. I have learned coping and management skills.”
It is apparent that the mother plans to see a psychiatrist about whether she fits the criteria for a diagnosis of ADHD. The mother said that her “symptoms align with some of the complaints of father and family members and workplace”. The mother anticipated receiving a diagnosis of ADHD but had not yet seen the psychiatrist. If that is not the diagnosis then she plans to continue to investigate what other diagnostic criterion she may fit for mental health conditions.
The mother’s treating practitioners during her hospitalisation in late 2019 recommended that she complete a DBT program to address her diagnosis of borderline personality traits. As noted previously, family consultant Ms H, who interviewed both parents in July 2020 recommended that the mother engage in an intensive Dialectical Behavioural Therapy (DBT) program to address her mental health issues, before consideration of final orders occurs.”[82] The family consultant, who interviewed both parents, interviewed the two older children, observed the children’s interactions with each of the parents, and considered the material produced on subpoena by independent third parties, recommended in her report, and in her oral evidence, that the mother undertake the DBT program. The family consultant also recommended that the father would benefit from engaging in a course to help him to manage and deal with people who manifest traits of borderline personality disorder.
[82] Child Dispute Conference Memorandum to Court paragraphs 30 and 31
I find that the mother has not demonstrated that she has adequately addressed her mental health issues.
Is supervision of the children’s time with the mother necessary to protect them from risk of harm, and if supervised time is required what orders are appropriate.
The father and the Independent Children’s Lawyer contend that the risks of harm to the children if they spend unsupervised time with the mother are unacceptably high, and that the risks of harm to the children in the care of the mother can only be ameliorated by supervision of the children’s time with her.
More than thirty years ago the High Court of Australia considered the approach in family law proceedings where there are allegations that a child is at an unacceptably high risk of harm from abuse.[83]
[83] M v M (1988) 166 CLR 69
I am mindful that the court must try and achieve a proper balance between the risk of harm to the children and the benefit to the children from spending time with the mother. The High Court stated that, “To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of… abuse.” [84]
[84] Ibid at [25]
I consider that the mother’s compliance with treatment recommended to manage her diagnosed borderline personality traits is a crucial precondition to the court being satisfied that the children are not at an unacceptably high risk or harm if they spend unsupervised time with the mother. Before the mother has successfully completed the DBT program there remains a high risk that she will become emotionally dysregulated in the presence of the children and she may subject or expose them to physical and psychological harm. The notes of the children’s counselling sessions with AG Counsellors reveal the extent to which the children have been negatively impacted by exposure to the mother’s conduct when she has been in an emotionally dysregulated state. The children require a reparative environment and any further subjection or exposure to abuse, neglect or family violence will set back their recovery from trauma.
The father expressed concern that the mother will denigrate him and his partner to and in the presence of the children, and he provides examples of when she has denigrated or threatened himself and Ms K.[85] Y has disclosed that the mother says unkind thing about the father during the supervised visits.
[85] Father’s affidavit paragraphs 76, 77, 79
I find that, on the current state of the evidence, the children are at risk of harm from being exposed or subjected to abuse, neglect or family violence or harm if they spend time with the mother that is not supervised.
The father says that encouraging the children to spend supervised time with the mother is challenging, and says that X and Y in particular express that they do not wish to attend. He says that X expresses the strongest views and that on three occasions leading up to the hearing X has refused to get out of the car in order to attend the supervised visit. The current regime of supervised time appears not to be meeting X’s needs, and he is refusing to attend.
The mother has relinquished some spend time periods with X and Y when they have refused to attend, and she said in her oral evidence that she has not wanted to force the children to spend time with her against their wishes. The mother is to be commended for her child focussed approach when dealing with the children’s reluctance to spend time with her, noting that the mother is very keen to spend time with the children and convey to them that she is interested in the children and loves each child.
Z has not expressed any complaint about attending supervised time with the mother. The father says that Z is often upset, and that her behaviour is poor, after the visits, sometimes for days.[86]
[86] Ibid paragraph 85
The mother proposed that her family members act as supervisors of the children’s time with her, but she did not provide an affidavit, or any other evidence, from any person who could supervise the children’s time with her. Due to the lack of evidence, the court cannot properly assess whether it is in the best interest of the children for a maternal family member to supervise. Absent evidence from a proposed supervisor the court cannot be satisfied that the supervisor is aware of the reasons why supervision is required, or aware of the serious obligations of a supervisor or whether the proposed supervisor is willing and capable of prioritising the children’s safety and, if necessary, removing the children from harm.
The father and the Independent Children’s Lawyer submitted that it is in the best interests of the children for there to be a gradual reduction of the supervised time that the children spend with the mother.
The father submitted that reducing the children’s time with the mother from regular weekends to specific occasions will reduce their exposure to high parental conflict.
During cross examination for the Independent Children’s Lawyer, the family consultant revised her original recommendation, that the children spend frequent supervised time with the mother, having regard to evidence that the mother has not taken up the recommendations for treatment. The family consultant supported a reduction in the amount of supervised time that the children spend with the mother.
A reduction in supervised time, for example to seven special occasions each year, as proposed by the father, may assist X to feel more comfortable about spending time with the mother. The mother recognised that X is growing up and he has an increasing need to feel he has some autonomy. It is important to make orders providing for the children to spend time with the mother together. I consider that, and as far as possible, each child should not be treated differently from each other when it comes to opportunities to spend time with the mother.
The proposal of the Independent Children’s lawyer would see a more gradual reduction in the children’s supervised time with the mother than that proposed by the father. The Independent Children’s lawyer proposes that the children will would continue to spend time with the mother supervised fortnightly for twelve months, then reduce to monthly for six months, before being reduced to once each alternate month. The final stage of the proposal of the Independent Children’s lawyer, if implemented, would see the children spend about the same amount of time with the mother each year, as what the father proposes.
The father’s proposal is structured around the significant occasions in the lives of the children and I consider that it is more likely to assist in implementing a predictable routine for the children and to ensure that the children are able to spend time with the mother around the time of significant occasions in the lives of the family.
I consider that whilst the mother has, by and large, been observed to be appropriately warm and engaging with the children, and understanding of their needs during her supervised time with them, the children each have damaged relationships with the mother which are unlikely to be repaired until she has developed further insight and capacity to take full responsibility for her actions and the impact on the children.
On balance I consider that retaining the current arrangements, which appear to be placing X and Y under pressure, is not appropriately responsive to the needs of the children in this case. I consider that an immediate reduction in the children’s time with the mother may better suit their needs and assist the children to feel more settled. In particular, a reduction in the frequency of the supervised visits may assist X and Y to better appreciate the time that they do have with the mother, and possibly increase their enthusiasm for participating in the visits.
I consider that implementing the father’s proposal for supervised time will provide appropriate opportunities for the children to spend time with the mother on or around the occasions that are of special significance to the children and to the mother, and maintain their connections with her. I accept the submission of Learned Counsel for the father that an immediate reduction in the children’s supervised time with the mother is most likely to reduce the children’s exposure to conflict.
Supervision of the children’s time with the mother is costly and the mother says that she has found it difficult to meet those costs in the past.
During the course of the current proceedings the parents have been paying equally the costs of the supervision of the children’s time with the mother. The father says his share is $88 on a Saturday and $99 on Sunday.
The father says that the mother is assessed to pay child support in the sum of $1,441 per month and that there are arrears of child support which amount to $12,886 at the date of hearing.[87] He says that the mother has put in six applications since September 2020 to reduce her liability to pay child support, which require a response from the father each time.
[87] Father’s affidavit paragraphs 108-109 and Annexure B
The mother says that she was unemployed for a 6-week period last year, and that she earns $112,000 p.a. She argues that the current assessment is based on the father having a lower income than he is currently receiving, and says that she is repaying the arrears by monthly instalments.
I consider that it is appropriate that the mother pay for the costs of the supervision of the children’s time with her, noting that the father is solely responsible for meeting the children’s day to day needs, and has the major burden for the financial support of the children.
Further additional considerations
I am required to consider any family violence involving the child or a member of the child’s family and, if a family violence order applies, or has applied, to the child or a member of the child’s family, and any relevant inferences that can be drawn from the order.
As noted previously, on 20 April 2017, the ADVO was made against the mother for a period of twelve months, for the protection of the father and the children, in the mandatory terms. The order expired on 19 April 2018.
The mother has alleged that the father perpetrated family violence towards her in the form of verbal psychological and physical violence. It appears that, except for the mother reporting to her doctor, in June 2017, that the husband is very abusive financially and mentally, including very verbally abusive toward her in the presence of the children, there is no other evidence that the father has perpetrated family violence. The father has consistently denied the mother’s allegations. Sensibly, there was no time taken up in cross examination of the father on the topic, because the mother conceded that the children will live with him, and inferentially she accepts that the children are not at risk of harm from being subjected or exposed to family violence in his household.
I have already addressed the risks faced by the children from being exposed to family violence in the mother’s household when her mental health is unmanaged and have found that the mother has not undertaken the treatment required to adequately manage her mental health and thereby ameliorate the risks.
Unfortunately in this case, because the mother is yet to satisfy the other parties or the court that she has addressed her mental health issues, making the orders sought by any of the parties may lead to the institution of further proceedings.
If the court makes the spend time with orders sought by the mother, then the children may be placed at risk of harm, which is likely to lead to further proceedings.
If the court makes the spend time with orders sought by the father, or the Independent Children’s Lawyer, and the mother is subsequently able to demonstrate, by proper evidence, that she has successfully completed the course recommended for her condition, and that she has adequately addressed her mental health issues, and that her mental health is stable, so that the risks to the children of spending unsupervised time with her are no longer capable of being assessed as unacceptably high, then it is likely that the mother will seek to spend unsupervised time with the children, which may lead her to institute further proceedings.
The court urges the parents to focus their attention on the children’s needs. The children are growing older, and their needs will change over time. If the mother is able to adequately address her issues, and this will likely take some further time, then the parents might avoid the considerable inconvenience and expense, and the pressure on the children, of further legal proceedings. Mediation may, in due course, assist the parents to focus on and discuss the children’s needs and resolve any future disputes that may arise, once the mother has done what is required of her to adequately address her mental health.
Will the court require the father to cease the children’s continued attendance upon AG Counsellors and the parents to obtain a referral for the children to attend upon “Company AH” or such other child and family psychologist (“the children’s treating therapist”) who the parents may agree, to arrange for the children to participate in family counselling, with the intention of supporting the implementation of the court’s orders?
The mother contended that the children are not being assisted by their present counsellor and she fears that the father has been putting words in the children’s mouths. She was clearly concerned that the father has been present with the children at the counselling including during the sessions. The mother was concerned that the children may not feel free to express their true feelings, including due to the loyalty binds that they may feel.
The family consultant expressed the opinion that it may be helpful for any clinician treating the children to read the Judgment to have a broader view of all the issues and that it may assist in the longer term to pick up the threads in the counselling. She expressed caution when asked for her view on the proposal that the father arrange alternative counselling for the children. She said that if the children are well engaged with their counsellor then it may not be in their best interests to remove them from someone with whom they have a therapeutic relationship.
Before addressing this issue more specifically, I note that some independent evidence demonstrates that both X and Y are doing well in the father’s care, and that he is meeting the children’s needs.
The school report for X for semester one in 2022 at AD School City P[88] records that X is progressing very well at school. X is described as a hardworking, friendly and mature student.
[88] Exhibit CC
The school report for Y for semester one in 2022 at AD School City P[89] records that Y is making sound progress at school. Y is described as a cheerful student, who is well liked by his peers.
[89] Exhibit DD
There appear no concerns for either X or Y in terms of their schooling.
The father deposes that Y has learning difficulties and that the father has arranged for Y to have a tutor, which has improved Y’s learning.
The father deposes that the children’s counselling is “to assist them with their emotional distress. He says that X and Y have spoken to him of their fears of being kidnapped by the mother, and X has told the father that the mother’s actions have caused him depression. Y has nightmares, and the father says that Y struggles the most of all the children.[90] The notes of the counselling sessions reflect the father’s evidence of the children’s disclosures.
[90] Father’s affidavit paragraphs 100 & 105
The father became visibly distressed, and I consider that he was genuinely distressed, when discussing the children’s ongoing counselling. He disagreed with the mother’s suggestion, when she cross examined him, that the counselling has not been effective. The father said that that he can see a change in the children. The father cried when he spoke about when Z first went to counselling, that she was too scared to take things out of her shelf and would put things in specific order, and the counsellor told the father that this was an indicator of trauma.
The Independent Children’s Lawyer submitted that the delivery of Reasons for decision, and an order that the parents have leave to supply a copy of the family report to clinicians providing treatment for the children, may assist a new therapist to provide a different kind of therapy to the children, that is family counselling, with the mother to be involved at the direction of the therapist.
The Independent Children’s Lawyer nominated Company AH, and submitted that any suitably qualified family therapist with experience in assisting children who are, or have been, the subject of family law proceedings would be appropriate. The court has been greatly assisted by the Independent Children’s Lawyer’s written submissions on this aspect of the matter, and more generally, and considered the submissions carefully.
Each child has had a therapeutic relationship with Counsellor Ms AF at AG Counsellors since early 2021. The children have had individual counselling with Ms AF. The family consultant was provided with the notes of the children’s counselling with Ms AF[91] ahead of her cross examination. The family consultant said during her oral evidence that the children appear to be well engaged with the counsellor. She expressed concern that denying the children further opportunity to engage with someone with whom they have a therapeutic relationship may not be in their best interests. She noted the difficulties in assessing whether an established therapeutic alliance should be broken in order to forge a new therapeutic alliance.
[91] Exhibit J
The Independent Children’s Lawyer noted in his final submissions some limitations to the reliance which can be placed on the material produced by AG Counsellors in Exhibit J. The father has facilitated the children’s engagement with AG Counsellors, including being present with each child during most sessions, many of which have been conducted on an electronic platform rather than face to face. As the Independent Children’s Lawyer submitted, this is by no means to be taken as a criticism of the father.
Having read the material produced by AG Counsellors, and having seen and heard the father give his evidence, I am satisfied that the father has arranged the counselling sessions for the children in good faith, and that he has participated in the sessions with the very best of intentions, that is to obtain professional assistance in meeting the children’s emotional and psychological needs.
The family consultant expressed her view that it is preferable if the clinician providing counselling for children in high conflict family law matters, such as the present, is specially trained in working with children of separated parents, where it may be important to explore the loyalty binds that children often feel in such circumstances. The qualifications of the children’s counsellor in this case are not apparent from the notes.
The mother has not been involved in facilitating or participating in the sessions, and ideally the children’s counsellor would obtain information from both parents in order to best meet the needs of the children.
The goal of trauma therapy for children is to work towards a resolution, to manage anxiety and triggers, and to manage the children’s behaviours and to help the children to emotionally cope with life. The Independent Children’s Lawyer noted a legitimate concern that it is somewhat unclear whether the sessions with AG Counsellors are reinforcing the children’s past experiences, and further cementing their trauma or whether the process is assisting the children to manage, and to repair their relationships with the mother and support their relationships with the mother into the future.
The AG Counsellors records demonstrate, in my view, that the counsellor is listening to the children, giving them a voice, and providing the children with exercises to assist each child to manage their feelings and memories. By way of example there is a reference in the notes to “restructoring (sic) memories”, to “creating new memories” and to practising the “restructored (sic)” memories.[92] The notes also refer, in X’s case, to writing a letter to the mother, which X does,[93] and specific strategies for managing anxiety, and in Y’s case strategies for managing his behaviour. There is a strong sense that the children are feeling heard. Y reports that he feels that he has improved.[94]
[92] Exhibit J pages 129-130, 149
[93] Exhibit J pages 141-142
[94] Exhibit J
The major impediment to the children benefitting from family counselling at this stage is that the mother is yet to take full responsibility for her actions, and the impact of her actions on the children, and is yet to complete treatment required to address her mental health issues. Until such time as the mother adequately addresses her mental health and takes full responsibility for her actions it is unrealistic to expect that a “new narrative” can be created. In my view the mother needs first to address how she has contributed to the old narrative, and how she can make sure that the mistakes of the past are not repeated.
It seems to the court that where the mother is yet to complete her treatment, and where the children’s safety cannot be assured until she does, there is little point in family therapy. The goal of family therapy is to repair the children’s relationship with the mother and move forward. Having found that the mother poses a risk to the children, until she adequately addresses her issues, family therapy may be unsafe for the children.
I cannot be satisfied that it is appropriate or in the best interests of the children to require the father to cease their attendance upon a clinician with whom they have had a therapeutic relationship for more almost two years, and I am not satisfied that the children will be safe from harm if they are required to engage in family therapy with the mother until such time as she has adequately addressed her mental health issues
Whether the parents will have permission to provide a copy of the Family Report, Reasons for Judgment and final orders to the children’s treating therapists, and whether the mother will have permission to provide a copy of the Family Report and Reasons for Judgment to any therapist, psychologist or psychiatrist engaged by her for the purpose of supporting her ongoing therapy
I accept the submission of the Independent Children’s Lawyer that the children may be assisted if their treating therapist has a copy of the final orders and Reasons for decision. I accept the evidence of the family consultant that the preference is for children to have counselling with a clinician who is trained in working with children post separation, due to the loyalty binds that children often feel when exploring their relationships with parents post separation. I consider that these reasons may assist the children’s current counsellor to understand the family law context, and that any future therapist may also be assisted.
I consider that it will benefit the children if the mother has permission to provide a copy of the family report and Reasons to any therapist, psychologist or psychiatrist who is treating her. These reasons provide a detailed history of the mother’s difficulties. As previously noted, Dr AQ was unable to “illicit (sic) any history of mental illness either in her history or in her current mental state”[95] , and further noting the mother’s desire to erase the diagnosis of borderline personality traits from the record, I consider that it is important that any therapist providing treatment for the mother has access to material which will elicit her full history, and in particular the children’s reported experiences in the mother’s care, and the impact of her conduct on the children.
[95] Exhibit FF
ALLOCATION OF PARENTAL RESPONSIBILITY FOR THE CHILDREN
Section 61DA provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
I am satisfied that the mother has subjected and exposed the children to family violence. I consider that the presumption is rebutted. Even if the presumption applied I am not satisfied that it is in the children’s best interests for the parents to have equal shared parental responsibility for the children in this case.
The father said, when under cross examination by the Independent Children’s Lawyer, that he finds his interactions with the mother distressing. He feels himself to have been in a traumatic situation with the mother for ten or eleven years and that he finds “the whole thing” difficult to deal with. He agreed that he finds interactions with the mother are distressing for him. He said that text messages from the mother create anxiety for him. He described that whenever the mother attacks his parenting, or accuses him of wrongdoing, he feels anxious and experiences pain in his stomach. He said that he can communicate with her slight changes to logistical arrangements. He described feeling the same anxious pain in his stomach at court, and had found the cross examination by the mother very stressful, and that he felt he was being cross examined by his “abuser”. The father presented as anxious and I accept his evidence that he is fearful of the mother.
I accept that the father’s feels anxious when he has to interact with the mother, and I consider that he has found it confronting and distressing to deal with the impact on the children of their trauma.
I consider that it is in the best interests of the children for the father to have sole parental responsibility for them.[96] The father is willing to notify the mother, when he is necessary to make a decision about a major long term issue for the children, and he is willing to invite the mother to respond with any proposal she may have, and to consider her proposal and let her know what he has decided.
[96] As I propose to make an order that the father will have sole parental responsibility for the children, there is no need to address the matters in s 65DAA
I consider that, when she is well, the mother likely has a lot to offer the children. She can be a loving and devoted parent, when her mental health is well managed. She presented at the hearing as an intelligent, hard-working and competent person, and she was thoughtful in her answers at times when discussing the children’s responses to the supervised time and the FaceTime calls. She was able to prioritise the children’s needs over her own in relation to those issues.
The mother presented as capable of considering and responding to the needs of the children, and I consider that she will be able to offer the father some helpful insights into their needs when it comes to decisions about major long term issues such as schooling and medical.
Whether the parents will use a parenting communication application such as “our family wizard”
The court considers that it is in the best interests of the children if the parents have a mechanism for communicating with one another that assists them to communicate clearly and without exposing the children to conflict. Neither of the parents made any submission against the court adopting the proposal of the Independent Children’s Lawyer, and a dedicated parenting app will, in the court’s view, assist the parents to communicate about the children in a safe and structured way.
CONCLUSION
Supervision of a child’s time with a parent is generally not an appropriate outcome in the long term. Supervision is generally a short term solution which is imposed to provide opportunity for a child to maintain an existing relationship with a parent while that parent attends to the issues which have given rise to the need for supervision of the child’s time with that parent.
The mother appears keen to explore whether or not she has adult ADHD. The mother is encouraged to take all necessary steps to obtain an up to date diagnosis of her mental health conditions, and comply with treatment.
The court anticipates that the mother will be very disappointed with the court’s decision, as it is not the result that she was hoping for. The court urges the mother to take up the opportunities, which the orders will provide, to be involved in the children’s lives.
Hopefully the mother will understand that there is some restitution work that she must complete, first with herself, and then with the children. If the mother is prepared to take up the liberty granted to her and provide a copy of the family report, and these reasons, to her therapist, then it is more likely that the work that she must do will be more clearly evident, which will benefit not only the mother, but more importantly the children.
When the mother has successfully completed the work that she must do herself, then family based counselling, along the lines of that which has been proposed by the Independent Children’s Lawyer, is recommended. The court notes that the father has made it plain, during the final submissions of his counsel, that it is likely to be in the children’s best interests for there to be a “new conversation” and hopefully a new and improved future for them, where they can benefit from a meaningful relationship with both parents, and are protected from the risk of further harm.
For the reasons provided I consider that the orders which are at the forefront of these Reasons are the orders which are in the best interests of the children in this matter.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 17 March 2023
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