Shellback & Shellback
[2022] FedCFamC1F 329
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Shellback & Shellback [2022] FedCFamC1F 329
File number(s): BRC 1475 of 2018 Judgment of: CAREW J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – CHILDREN – Unacceptable risk of physical, emotional and/or psychological harm – Where the mother was convicted of manslaughter for killing her husband – Where the child was cared for by the paternal family while the mother was incarcerated in Brisbane –Where the child lives with the paternal grandfather in Queensland – Where the mother wants the child to live with her – Where the Independent Children’s Lawyer supports the child continuing to live with the paternal grandfather – Where the Court orders the child live with the paternal grandfather and spend supervised time with the mother. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1936) 60 CLR 336
Johnson & Page (2007) FLC 93-344
M v M (1998) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 69 Date of hearing: 21 – 24 March 2022 Place: Brisbane Counsel for Applicant: Mr Linklater-Steele Solicitor for Applicant: HopgoodGanim Lawyers Respondent: Self-represented Counsel for Independent Children’s Lawyer: Ms McArdle Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 1475 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHELLBACK
Applicant Paternal Grandfather
AND: MS SHELLBACK
Respondent Mother
ORDER MADE BY:
CAREW J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.Mr Shellback (“the applicant”) shall have sole parental responsibility for the child X born in 2013 (“the child”).
2.The child shall live with the applicant.
3.The applicant shall inform Ms Shellback (“the respondent”) of decisions he makes in the exercise of parental responsibility including decisions about:
(a)where the child is enrolled for primary (if there is a change) and high school;
(b)the doctors, medical specialists, mental health practitioners and other health professionals treating the child, and any changes or additions to those practitioners;
(c)any important religious activities or ceremonies the child is to undertake.
4.The applicant shall advise the respondent about the decision within 14 days of the making of a decision and provide to the respondent the contact details for any practitioners treating the child.
Time arrangements
5.The respondent shall spend time with the child at all such times as may be agreed in writing between the applicant and respondent and failing agreement the following times and arrangements shall apply:
(a)During the Easter school holiday period:
(i)In even numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in Q Town;
(ii)In odd numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in the Brisbane area;
(b)During the June/July school holiday period:
(i)In even numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in the Brisbane area;
(ii)In odd numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in Q Town;
(c)During the September school holiday period:
(i)In even numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in Q Town;
(ii)In odd numbered years from 8am to 5pm on the first Monday and Tuesday of the school holiday period in the Brisbane area.
(d)During the Christmas school holiday period:
(i)In even numbered years from 8am to 5pm on Christmas Day and Boxing Day in the Brisbane area;
(ii)In odd numbered years from 8am to 5pm on the last Monday and Tuesday of the school holiday period in Q Town.
(e)Changeovers in Q Town shall take place at U Shop, Q Town and the respondent shall provide to the applicant no less than seven days prior to the commencement of the time:
(i)Details of her flights to and from T City; and
(ii)Details of her accommodation in Q Town.
(f)Changeovers in Brisbane shall take place at McDonalds on the corner of E Street and N Street;
(g)The days set out in this order shall be calculated on the school calendar that the child is attending;
(h)All time spent by the respondent with the child shall be supervised by a person agreed to by the applicant and respondent and failing agreement by Mr BB upon him signing and filing an Undertaking to the Court in the terms set out below:
I [full name and address] undertake to take all reasonable steps necessary to ensure the emotional and physical safety of the child when he is spending time with his mother. In particular, I will ensure that the child remains in my sight and hearing at all times when the mother is present.
I further undertake to intervene if the mother commences to discuss the circumstances of the child’s father’s death with the child.
I have received legal advice about the consequence of breaching this undertaking and willingly provide it.
(i)All costs associated with the respondent spending time with the child in Q Town shall be borne by her.
(j)All costs associated with the respondent spending time with the child in Brisbane shall be borne by the applicant.
Communication
6.The respondent shall be at liberty to communicate with the child by video call or telephone at all such times as may be agreed between the applicant and respondent and failing agreement as follows:
(a)each Monday at 4pm;
(b)on the child’s birthday at 4pm; and
(c)on the respondent’s birthday at 4pm.
7.For the purpose of the communication provided for in the preceding paragraph, the respondent shall initiate the call to the applicant’s video device or phone and the applicant shall facilitate the call or if the child is not available at that time, he shall facilitate the child calling the respondent as soon as practicable thereafter.
Authorities
8.This order authorises the child’s school to release to the respondent, information and documentation about the child’s education including but not limited to semester reports, certificates relating to performance and student photographs with any cost associated therewith to be borne by the respondent.
9.This order authorises the child’s treating medical, psychological or allied health practitioners to release to the respondent, information and documentation about the child’s health and welfare and to facilitate the mother’s participation in the child’s psychological therapy, as determined by the practitioner.
10.Each of the parties shall inform the other as soon as practicable of the child suffering any significant injury or illness and convey to the other the name and contact details of any practitioner treating the child, or any hospital where he is being treated.
11.The applicant and respondent shall forthwith on the making of this order provide the other with their phone and email contact details, and notify the other of any change to those details within 48 hours of any change.
12.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the applicant is permitted to take the child overseas and is permitted to cause the child to travel overseas without being accompanied by the applicant where the child is either on a school excursion or is accompanying other family members.
13.Pursuant to and for the purposes of section 11 of the Australian Passports Act 2005 (Cth):
(a)The child, X born in 2013, is permitted to leave the Commonwealth of Australia;
(b)The requirement for the respondent’s signature on any passport application or a renewal of passport for the child, X born in 2013, is dispensed with and the applicant is entitled to apply for and be granted any and all necessary travel documents without the consent of the respondent in the absence of the consent of the respondent or otherwise, and insofar as it is necessary this Order operates as an authority for the applicant to do so.
14.The applicant shall retain possession of the child’s passport other than if he is travelling on a school excursion or accompanying other family members.
IT IS NOTED THAT:
A.The applicant and respondent agree that they will each facilitate the child calling the other party at any reasonable time that the child expresses a wish to do so.
B.Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in this Order.
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 the pseudonym Shellback & Shellback has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J.
In 2017 X’s world was shattered when his mother, Ms Shellback (now known as Ms D), killed his father. X effectively lost both parents that day. His mother went to prison until released on parole in early 2021 and since her release he has spent limited supervised time with her.
In what was described by the sentencing Judge as [sentencing reasons omitted to comply with s 121] the mother killed her husband. The mother was arrested and remanded in custody. She pleaded guilty to manslaughter and was sentenced to a term of imprisonment. No recommendation for parole was made. The mother appealed against her sentence. The appeal succeeded by a majority, but only as to the failure to make a recommendation for parole. It was conceded by the mother, at the appeal hearing, that the head sentence was appropriate. The Supreme Court of Queensland (Court of Appeal) varied the sentence by ordering that the date the mother was eligible for parole be fixed. The mother spent over three years in gaol for killing her husband.
There is now a dispute about whether X should continue to live with Mr Shellback, his paternal grandfather, or return to live with his mother.
Despite the mother being a low risk of killing again, I have found that she poses an unacceptable risk of physical, emotional and/or psychological harm to the child. Accordingly, I have concluded that the child should continue to live with the paternal grandfather and spend supervised day time only with the mother.
BACKGROUND
The mother married Mr B, the child’s father, (now deceased) in 2010. X was born in 2013 and was their only child. Mr Shellback was 35 years of age at the time of his death.
The mother is 41 years of age and worked as a professional until sometime before the child’s birth. The mother currently works full-time, from both an office and from her home at Suburb F, V City. She has lived in the same rented premises since mid-2021. The mother is also studying part-time. She is not in a relationship.
At the time of his death, the father had his own business and by all accounts he worked very hard in the business. His long work hours were a source of frustration for the mother.
Very shortly after the mother’s arrest, the child initially went to live with his paternal grandparents in Brisbane. Shortly after the father’s death, the paternal grandfather’s father died in Country AA in 2018. Ms R (the paternal grandmother) died in 2019 aged 65 years. The paternal grandfather is 70 years of age and in good health. He works as a consultant. The paternal grandfather has a background as a finance professional in Country AA before relocating to Australia with his family in 1997. Ms R obtained a Degree in 2010. She was diagnosed with a medical condition in 2004 and secondary condition in 2010. Ms R was undergoing medical treatment at the time of her son’s death. The paternal grandfather has consulted a psychologist to assist him with his grief.
Other members of the paternal family are Ms O (the paternal aunt). Ms O is 34 years of age and married to Mr H who is a health technician. They have three children. Y was born in 2014, W was born in 2017 and Z was born in 2019. The family live in Q Town, Queensland. After a holiday with the family in or about January 2018, the child commenced to live with them in Q Town from early 2018 until late 2020. An interim order was made on 21 September 2018 providing for the child to live with Ms O. The order further provided for the mother and Ms O to have “parental responsibility” for the child. In the exercise of her parental responsibility Ms O was required to consult with the mother in relation to decisions made about “health, schooling and religion for the child prior to making any decisions in relation to these matters” and to “keep the mother apprised as to the child’s health and progress at school”.
As a consequence of a number of factors including Ms O’s devastation at her mother’s death, the child acting out and Ms O’s need for further support with the impending birth of her third child, the paternal grandfather moved to Q Town to live with the family so that he could provide support. This occurred in early late 2019. He remained living with the family until obtaining rental accommodation in Q Town and moving out with the child in late 2020.
Mr C is the paternal uncle. He is 42 years of age and employed as a professional in Brisbane. Mr C lives with his partner, Ms G, and her daughter, CC, who is eight years of age. Ms G was diagnosed with a medical condition in early 2021 but is responding well to treatment.
The child has attended P School, Q Town since commencing prep in 2018, apart from the first term in 2021 when he lived in Brisbane with the paternal grandfather and attended S School, while the paternal grandfather attended to the father’s estate matters. The child is in grade three and achieving well academically. There have been some behavioural problems at school which have escalated this year.
ISSUES
With the assistance of the parties, the following significant issues were identified as requiring determination:
(1)What are the child’s attachments to the applicant paternal grandfather and the respondent mother?
(2)What is the willingness and capacity of each party to facilitate a relationship between the child and the other side of his family?
(3)Should the person with primary care for the child have sole parental responsibility for major long-term issues?
(4)Is there an unacceptable risk of harm to the child if he is spending unsupervised time with the respondent mother and is any risk increased over longer periods of block time?
(5)Will the child spending unsupervised periods of block time with the respondent mother impinge upon the applicant paternal grandfather’s capacity as the primary care giver of the child?
(6)What impact (if any) will the child experience if he continues to live with the applicant paternal grandfather in circumstances where he and his extended family are arguably still attempting to cope and come to terms with numerous recent tragedies in their lives?
WHAT PARENTING ORDER IS SOUGHT BY THE PARTIES?
The ICL recommends that the child continue to live with the paternal grandfather and that he have sole parental responsibility for the child. The ICL further recommends that the mother spend supervised day time only with the child.[1]
[1] The precise minute of order recommended by the ICL is set out in exhibit 9.
The paternal grandfather largely adopts the recommendations of the ICL but in addition proposes that the order include certain specific issues provisions e.g. overseas travel.[2]
[2] The precise minute of order sought by the paternal grandfather is set out in exhibit 11.
The mother proposes that the child live with her and that she have sole parental responsibility and spend time with the paternal grandfather during school holidays and occasionally during school term.[3] The mother opposes the child travelling overseas with the paternal grandfather.
[3] The precise minute of order sought by the mother is set out in exhibit 1.
WHAT LAW GOVERNS THE DETERMINATION OF A PARENTING DISPUTE?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]
[4] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. Obviously that object cannot be attained in the present case as the child’s father is deceased. Section 65C(ba) of the Act permits a grandparent of the child to apply for a parenting order and s 64C of the Act permits a parenting order to be made in favour of a person who is not a parent.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, which in this case require me to consider, in particular: the benefit of the child having a meaningful relationship with the mother and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child; the nature of the relationship between the child and the mother, the paternal grandfather and significant others in the child’s life; the likely effect of any changes including the likely effect on the child of any separation from the mother, the paternal grandfather and significant others; the practical difficulty and expense of the child spending time with the mother if the child does not live with her and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the mother on a regular basis; the capacity of the mother and the paternal grandfather to provide for the intellectual and emotional needs of the child; the maturity, sex, lifestyle and background of the child and the mother and any relevant characteristics of the child; any family violence involving the child or a member of the child’s family; whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings and any other relevant matter (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[5] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[6] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[7] Where it is not possible to positively reject an allegation as groundless the Court is nevertheless required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[8] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[9] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[10]
[5] Evidence Act 1995 (Cth), s 140.
[6] M v M (1998) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1936) 60 CLR 336 at 362 (Dixon J).
[7] Ibid.
[8] M v M (n 6) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[9] Johnson & Page (2007) FLC 93-344 at 81,890-81,891, [68].
[10] Ibid at 81,891, [71].
The Full Court of the Family Court (as the Court was then known) recently reviewed the role of the Court in assessing risk in Bant & Clayton[11] and said from [38]:
[11] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[12] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[12] Bant & Clayton (n 11).
The Court is not required to make findings of fact on every factual dispute raised by the parties.[13] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[14] on each and every factual dispute.[15]
[13] Baghti & Baghti and Ors [2015] FamCAFC 71.
[14] M v M (n 6) at 76.
[15] Ibid.
Each parent (in this case the mother) has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[16]
[16] Banks & Banks (2015) FLC93-637.
I turn now to consider the issues in this matter.
WHAT ARE THE CHILD’S ATTACHMENTS TO THE APPLICANT PATERNAL GRANDFATHER AND THE RESPONDENT MOTHER?
It is common ground that the child has a close and loving relationship with the paternal grandfather and that he is the child’s primary carer. I find that the paternal grandfather has been the child’s primary attachment figure since at least early 2020 and I accept the child’s psychiatrist’s (Dr J) opinion that the child has a “secure attachment” to the paternal grandfather.
When the child’s psychologist (Dr K) was asked about the child’s relationship with the paternal grandfather, she was able to provide a very helpful account of her observations of them together and supportive of her opinions about the nature of the relationship:
The – the dyad is quite secure. So when [the child] – I noticed in the room when [the child] was concerned about something or didn’t know something he would automatically turn to his granddad, and he would look at him questioningly or ask him outright. … With [the paternal grandfather], one of the things that I was concerned about was whether or not he – he had dealt with his bereavement. Okay? Or whether or not he had – was somehow positioning – positioning [the child] as the son who is now gone. … I didn’t see any of that in – in my interactions with – with [the paternal grandfather]. I didn’t seem him putting on anxieties. I – I found him to be a very calm man. When we talked, the only times that he talked differently was when we talked without [the child] in the room when we talked about the incident itself and what he knew about it.
…
[The paternal grandfather] is supportive and reassuring.
I find that the child has a secure and primary attachment to the paternal grandfather.
It is also common ground that the child enjoys spending time with the mother, although his practice of “masking”, which his psychologist describes as internalising his emotions, telling adults what he thinks they want to hear and diverting uncomfortable topics of conversation, can make it difficult to be sure about what he is feeling.
The child was only four and a half years of age at the time of his father’s untimely death and he is now nearly nine years of age. The mother was incarcerated from late 2017 until early 2021. The child visited the mother in prison for the first time in early 2018 but then moved to live in Q Town. At the end of that year an order was made to facilitate the maternal step-grandfather taking the child to the prison to visit the mother. The child spoke to the mother on the phone from time to time and received some cards and letters. While the child visited the mother in prison from time to time (but not during the first 11 months after he moved to Q Town), the situation is clearly not conducive to maintaining a meaningful relationship. Since her parole, the mother has spent time with the child supervised by the maternal step-grandfather. The mother has remained living in the Brisbane area. Currently the mother sees the child every three weeks alternating between Q Town and Brisbane. The parties agree that frequent visits to Brisbane (even as often as every six weeks) are too destabilising for the child and should not continue. The mother’s time recently increased to include block time (still supervised) of four consecutive days in December 2021 and January 2022.
In relation to the child’s current attachment to the mother, Mr L, the family report writer, opines:
I am working [on] a premise that he is likely to have had a reasonably secure attachment to her before the incident. How he makes sense of that now at the time of my assessment is what I’m endeavouring to understand. My sense is that he – he has no experiential knowledge of her as a carer that he can reliably remember. He has an emotional – it’s reasonable to expect he has an emotional memory of his mother as a carer to him. He presents with positive investment in receiving her care – receiving her touch and her affection and her love and he’s receptive to what she has to say, and he speaks positively about the notion of spending time with her. That, in my view, is where this child was at the time of the assessment, and that’s essentially what’s informing my views.
I find that the child has a relationship with the mother upon which he places value and it is likely that he retains an attachment to her as his mother.
Although not specifically mentioned in the issue identified above, I note that it is also common ground that the child enjoys a loving relationship with his step-maternal grandfather, Mr BB, and his paternal uncle, Mr C.
While there were some difficulties in the child’s relationship with his paternal aunt, Ms O, in the past, I am satisfied that he now enjoys a comfortable and loving relationship with her and the family, in particular the child, Y.
WHAT IS THE WILLINGNESS AND CAPACITY OF EACH PARTY TO FACILITATE A RELATIONSHIP BETWEEN THE CHILD AND THE OTHER SIDE OF HIS FAMILY?
Not surprisingly, some members of the paternal family have at times struggled with facilitating the child’s relationship with the mother. Understandably, the fact that she killed the child’s father is a difficult hurdle to overcome. However, I must say that overall I consider the paternal family, and the paternal grandfather in particular, have demonstrated an extraordinary ability to put their own feelings aside for the benefit of the child, with the realisation that whatever the mother has done, the child wants and needs to have a relationship with her. Ms O has perhaps found the hurdle greater than other members of the paternal family, but even she worked around her abhorrence of having to have contact with the mother (even indirectly), for example by having others read the mother’s letters to the child.
The paternal family’s understandable reluctance to facilitate the child’s relationship with the mother at times, has not been assisted by the mother’s self-focus i.e. on how her criminal actions have affected her. The mother demonstrated little empathy or understanding of the havoc and devastation her actions caused. There was little, if any, expression or demonstration of remorse by the mother. She seemed more focussed on blaming others for the difficulties that she and the child have experienced since 2017. The content of some of the mother’s affidavit material, for example, making absurd and baseless allegations that the now deceased paternal grandmother was “a witch” and that the paternal grandfather suffers from dementia etc. and her conduct at times during the trial, for example, her obvious vitriol directed towards Ms O, did not assist her case. At one point the mother suggested that she felt “hurt and unfairly accused” which, I must say, I found a startling example of her self-focus. During submissions, the mother expressed some regret at adopting “a gloves-off approach” during the trial and said she was “willing to restore a co-operative approach”. I remain unconvinced.
I find that the paternal grandfather, with the support of the wider paternal family, have facilitated the child spending time with and communicating with the mother and maintaining his relationship with her. I accept that the paternal grandfather displays photographs of the mother in his home. I accept the paternal grandfather’s sincerity and commitment to maintaining the child’s relationship with the mother which is demonstrated in the orders he proposes and in his conduct to date.
Unfortunately, there was little in the mother’s conduct during the trial or as demonstrated in her affidavit material that would cause me to accept that she would facilitate and encourage the child’s relationship with the paternal grandfather and extended paternal family if the child were to live with her. The mother remains highly critical of the paternal family and seemingly unable to see things from their perspective. Unlike the paternal grandfather, the mother was almost exclusively focussed on her rights and needs.
SHOULD THE PERSON WITH PRIMARY CARE FOR THE CHILD HAVE SOLE PARENTAL RESPONSIBILITY FOR MAJOR LONG-TERM ISSUES?
Given the level of enmity between the parties, more particularly by the mother towards the paternal grandfather, and the fact that there is no direct communication at all between the parties (it all goes through lawyers) it is simply unrealistic to expect the parties to be able to make joint decisions about major long term issues for the child.
I accept Mr L’s opinion that the “fundamental conflict between the paternal family and the mother appears irreconcilable”. I further accept his opinion that “[i]n the long term, direct communication between the parties is unlikely to be effective or productive and is more likely to produce conflict and mistrust”.
In the circumstances, the person with the primary care of the child should have sole parental responsibility for major long term issues that affect the child.
IS THERE AN UNACCEPTABLE RISK OF HARM TO THE CHILD IF HE IS SPENDING UNSUPERVISED TIME WITH THE RESPONDENT MOTHER AND IS ANY RISK INCREASED OVER LONGER PERIODS OF BLOCK TIME?
The risk identified by the ICL as being unacceptable is that of emotional harm, expressed on behalf of the ICL, as arising as a result of the mother’s attempts (demonstrated during the trial) to “recast the events [of 2017] in a manner [that] minimis[es] her responsibility, potentially shifting some responsibility to [her deceased husband]”.
The ICL’s reference to ‘recasting’ refers to the mother’s evidence during the trial when she raised for the first time a suggestion that she was “tortured” by her husband and was a “battered wife”. Even allowing for the fact that the mother may be prone to hyperbole, there was absolutely no suggestion during the criminal proceedings that the mother was a victim of family violence. During submissions, the mother disavowed her earlier assertions during the trial stating:
I want to be very clear that I don’t seek to blame [the father] in any way for his death. I did not want to be disrespectful to the [paternal grandfather], and I apologise for causing him pain. I regret that through an extremely stressful cross-examination, I expressed my concern badly. I didn’t have the opportunity to explain what I meant, but I don’t wish to claim to be the victim of severe domestic violence, and I would like to assure you that I certainly would not tell [the child] that it was his father’s fault in any way. I’m going to do the best I can to preserve [the child’s] memory of his father, …
I appreciate that these proceedings have been very stressful for all concerned and I take into account the fact that the mother was representing herself, but the claims made by the mother during the trial were untrue, as demonstrated by her withdrawing them during submissions. Until withdrawn by the mother during submissions, the paternal grandfather was exposed to these outrageous accusations against his deceased son. It raises the very real risk of the child being exposed to such allegations in the future. There is already some evidence that this may already have happened e.g. the child has been reported as stating that his father was mean to the mother.
The independent psychiatric expert, Dr M, suggested that the mother’s attempt to deflect blame from herself might be understood in the context of her personality disorder (discussed in greater detail below), in that: “[e]veryone will try and make some sense of that event and how they do that will depend on their personalities. And if it is the case that she now sees herself as a victim, that would – that’s a function of the personality. To process that information – process what has happened, … A person without personality vulnerabilities would maybe process it ... It’s a terrible thing that happened. I deserve to go to jail; I’ve learned my lesson; I hope … it never happens again. I’ve done a terrible thing to his family. Yes. I’m to blame. Yes. That would be a healthier response”.
Although the ICL submits that the main risk to the child currently is one of emotional harm, I find that given the history, there is also a real risk of physical harm. Understandably, the paternal grandfather remains concerned for the physical safety of the child if he were to spend unsupervised time with the mother. It is the mother’s potential to overreact in times of stress that causes me to have concerns about the safety of the child (both emotional and physical) if he were to spend unsupervised time with the mother.
While Dr M opined that the risk of violence towards the child (at least currently) was low given the absence of evidence of violence or neglect to the child in the past, he also opined that the risk of violence may increase as the child grows up and enters his teenage years when he may become more defiant. Dr M was unaware of the increase already in the child’s troublesome behaviours in recent times, which in my view increases the current risk. When assessing the nature of the risk, I accept that the circumstance of homicide of her husband was “a rare event” unlikely to be repeated but the magnitude of the risk of physical harm has to be assessed in the context of a mother with a personality disorder and a child suffering from anxiety and exhibiting increased emotional dysregulation.
According to Dr M (and the records forming part of the evidence) the mother has a “history of trauma and depressive episodes and anxiety” with the principal issue being “personality vulnerability” i.e. “she’s more susceptible to acute reactions to stress in an adverse way than other people”. The acute reactions include angry outbursts and “intense sensitivities so that individuals with this personality configuration are likely to be more hurt about something that has happened and that might lead to non-adaptive ways of dealing with hurt such as … thinking of self-harm, that kind of thing”. Dr M opined that the mother’s personality vulnerabilities are in the “category of disorder rather than just vulnerability” although not at the severe end of the scale. The personality disorder in Dr M’s opinion is a “mixed personality disorder with predominant traits being … borderline traits, that is, lack of a sense of coherence of self, chronic problems with self -esteem and self-worth and problems with affect regulation and tolerating uncomfortable affect and insecurity in interpersonal relationships – social sensitivity”. Despite her personality disorder, Dr M opined that the mother can function reasonably well. Dr M described the problem (in the context of risk) as being one of “regulation of affect” and of “tolerating uncomfortable affect”.
If the mother were his patient, Dr M said he would be offering her individual psychotherapy once a week for a year “at least”. Dr M did not see the mother’s previous psychiatric intervention as being more than “supportive” and in his view intensive therapy is required.
In my view, the risks to the child are increased due to his own vulnerabilities. He is a particularly anxious child. The child survived the trauma of losing a parent as a result of homicide by his mother. He was present in the home at the time. He has made some comments that suggest he may have been a witness to the incident although that is far from clear. The child certainly was present in the home when police and paramedics arrived and I can only imagine the confusion and distress he must have felt. The child has also had to cope with the additional loss of his grandmother and moving homes on a number of occasions. He has of course also substantially lost his relationship with his mother although he maintains a connection with her. The child has exhibited increased behavioural dysregulation in recent months including what his teachers and the school guidance officer regard as an unhealthy focus on blood and death. The child is under the care of a psychiatrist and a psychologist and will likely require that support for many years to come. He certainly requires stability and a calm and supportive living environment. Any disruption to that would be unhelpful to say the least.
The child’s psychologist has had extensive experience working with children who have experienced various forms of trauma and explained that the child’s experiences (whether or not he actually witnessed the incident in which his father was killed) “will affect his entire life”. He is likely to experience difficulties well into adulthood. The child is very bright and asks many questions. He has a need to know what is happening and does not like choices. The psychologist expressed the view that the child’s anxiety has “… got higher and higher as he’s been seeing his mum more and more”. It is difficult to assess why this may be the case but the psychologist opined that it is “[m]ore than likely, he’s experiencing anxiety because he doesn’t know what’s going to happen” and because he is a very bright child and “for bright kids you need to be very predictable”.
In my view, the risks of harm posed by the mother to the child include physical, emotional and/or psychological harm and I find the risks to be unacceptable. The combination of the mother’s personality disorder, and in particular the risk of physically lashing out in times of stress (as she did in 2017 which involved not only the incident of throwing the knife that killed her husband, but prior to that, throwing a laptop at him), and the child’s anxiety and need for calm predictable responses, cause me to conclude that the risks of harm that are unacceptable include the risk of physical harm. The form of emotional or psychological harm also includes exposure to angry outbursts (including threats of self-harm as occurred in 2017) and emotional manipulation including ‘recasting’ the circumstances of his father’s death. According to the child’s psychologist, it would be very emotionally damaging for the child to have his memory of his father eroded. Likewise it would probably cause him great disturbance to be asked to choose where he wants to live. Wherever he lives, he needs to be supported in that situation.
The mother would benefit from intense therapy not only to deal with her own compromised childhood history and her personality disorder, but also to address and obtain clear guidance from the child’s treating practitioners about how to best support the child.
In my view, the risks to the child would be increased if he were to spend block periods with his mother. It is not feasible in my view for block periods including overnight to be appropriately supervised. It became apparent during the cross-examination of Mr BB that his understanding of what was required of him by supervision was not what the other parties thought was occurring. If he continues to be the supervisor he will need to provide an undertaking to the Court confirming his preparedness to be present and within hearing at all times when the child is spending time with the mother and to intervene if the mother starts to talk to the child about the events of 2017. To be fair to Mr BB, I do not believe that he fully appreciated the true impact of the mother’s personality disorder and how her judgment can be impaired because of that.
WILL THE CHILD SPENDING UNSUPERVISED PERIODS OF BLOCK TIME WITH THE RESPONDENT MOTHER IMPINGE UPON THE APPLICANT PATERNAL GRANDFATHER’S CAPACITY AS THE PRIMARY CARE GIVER OF THE CHILD?
As I do not propose to make an order that the mother spend unsupervised block time with the child, this issue does not require determination. In any event, it was not submitted that such an order would seriously impinge on the paternal grandfather’s parenting capacity although he would be most apprehensive if such an order were to be made.
WHAT IMPACT (IF ANY) WILL THE CHILD EXPERIENCE IF HE CONTINUES TO LIVE WITH THE APPLICANT PATERNAL GRANDFATHER IN CIRCUMSTANCES WHERE HE AND HIS EXTENDED FAMILY ARE ARGUABLY STILL ATTEMPTING TO COPE AND COME TO TERMS WITH NUMEROUS RECENT TRAGEDIES IN THEIR LIVES?
The enormity of the series of traumas experienced by the paternal family have already been recorded elsewhere in these Reasons. Throughout it all the paternal grandfather has demonstrated extraordinary resilience and remained truly child focussed. For that he is to be commended.
The paternal grandfather has engaged with supporting professionals when required and has obtained significant psychological support for the child. In short, he has done everything humanly possible to assist the child through the most unimaginable trauma. The paternal grandfather has been supported in that by his loving family and while at times some members of the family have struggled, I accept that they have at all times done their best to remain child focussed.
The child’s behaviour has recently become more challenging. It is difficult to conclude precisely why that is the case although it is hardly surprising given what he has been through, and indeed is to be expected according to his treating psychiatrist. What the child most needs now is to continue to live in a supportive environment with his paternal grandfather and for his mother to accept and support that placement. The mother assured the Court during her submissions that she would accept and embrace whatever the outcome was to be and I hope that is the case.
WHAT PARENTING ORDER IS PROPER IN THE CIRCUMSTANCES OF THIS CASE?
I have found that the mother presents an unacceptable risk of harm to the child however it seems to be accepted that the mother should nevertheless continue to spend time with the child albeit supervised, and communicate with him.
In Dr K’s view, even if the mother is assessed as posing an unacceptable risk of harm to the child, it is probably better for him to spend some time with the mother if it is safe to do so. Otherwise the child may build an unrealistic image of the mother and potentially become antagonistic towards the paternal grandfather if he feels he has prevented him from having a relationship with the mother.
The paternal grandfather and the ICL support the mother continuing to spend time with the child and I consider that to be in his best interests. Although Mr BB perhaps misunderstood his role as supervisor in the past it is in the best interests of the child if he were able to continue to be the supervisor so that the time spent between the mother and the child can be as normal as possible. This is supported by the paternal grandfather and the ICL. Any concerns about Mr BB’s understanding of his role can be addressed by him signing an undertaking to be filed with the Court.
I consider that the order proposed by the ICL best meets the needs of the child and I will include the specific issues provisions sought by the paternal grandfather, including the ability for the child to travel overseas. I do not consider the paternal grandfather or members of his family to be a flight risk and the child should have the opportunity to travel on holidays if that is an option.
I have not included a requirement that the mother’s time with the child be suspended until she engages with the child’s treating psychiatrist and psychologist (as sought on behalf of the paternal grandfather). The mother has had the benefit of hearing their evidence and the indication from them that they would welcome her contact. The mother indicated that she would do so in order to gain a better understanding of how she can offer support to the child and, of course, the mother’s time with the child will be supervised.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 17 May 2022
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