TANNER & TANNER

[2017] FamCA 173

FAMILY COURT OF AUSTRALIA

TANNER & TANNER [2017] FamCA 173

FAMILY LAW – CHILDREN – Interim hearing – Best interests of the child considered – Where there are significant mental health concerns regarding the father – Where the father is currently spending supervised time with the child – Where there are significant factual disputes – Where the evidence needs to be tested at final hearing – Where the Single Expert raises concerns about the father’s parenting capacity – Where protecting the child from harm takes precedence – The child to live with the mother – The child to continue to spend supervised time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Banks & Banks [2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
George & George [2013] FamCAFC 182
Goode and Goode: [2006] FamCA 1346
Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Tanner

RESPONDENT: Mr Tanner

FILE NUMBER: PAC 3155 of 2016

DATE DELIVERED: 22 March 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT:	Turner Freeman Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Richards

SOLICITOR FOR THE RESPONDENT: M & K Lawyers

Orders, Pending Further Order

1. That the orders made 14 November 2016 be discharged.

2. That the child B born … 2013 live with the mother.

3. That the child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement:

   (a)Each Tuesday from 9.15 am to 11.45 am supervised by R Group at a location nominated by the father but excluding the former matrimonial home,

   (b)Each Thursday from 12.00 noon to 3.00 pm supervised by C Group, Central Coast at a location nominated by the father on the Central Coast area,

   (c)Each Saturday from 10.00 am to 1.00 pm supervised by C Group, Central Coast at a location nominated by the father on the Central Coast area.

4. That the father advise the mother by text message by 7.00 pm on the day before the commencement of time as to the locations referred to in the previous order that the child’s time with the father shall commence and the mother shall deliver the child to that location and collect her from that location.

5. That the father be permitted to bring family members to the times the child spends with him.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tanner & Tanner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3155  of 2016

Ms Tanner

Applicant

And

Mr Tanner

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings relating to the child B (the child) born in 2013. The child is presently three years of age.

2. The child is the only child of the applicant mother and respondent father who commenced cohabitation in 2001, married in 2010 and separated in July 2016.

3. The father is aged 43 and the mother is aged 38.

4. The father is employed in a senior role earning about $150,000.00 per annum. The mother relies on government benefits and child support.

Context

1. The mother commenced parenting and property proceedings in July 2016.

2. A significant consideration is the mental health of the father.

3. On 23 August 2016 interim orders were made by consent that provided for the father to have institutionally supervised time with the child for several hours twice each week.  It was noted at that time that the mother would consider the child’s time with the father being at “an external location” upon release of supervision reports.

4. On 14 November 2016 further orders were made by consent as follows:

   1.That the orders made 23 August 2016 be discharged.

   2.That pending this matter being listed for interim hearing and without admissions, without prejudice basis, the child [B] born on … 2013 ("[the child]") spend time with the father as follows:

   2.1Each Tuesday from 9.15 am to 11.15 am supervised by R Group at one of the following locations:-

   2.1.1[D] Park;

   2.1.2[E] Park, [Suburb F];

   2.1.3[G Centre, Suburb H];

   2.1.4[Suburb I] Library.

   2.2Each alternate Saturday from 1.00 pm to 3.00 pm supervised by [Ms J] from [C Group], the first such time to occur on Saturday, 26 November 2016, at one of the following locations;

   2.2.1[Suburb K] RSL;

   2.2.2[L] Shopping Centre;

   2.2.3[M] Park;

   2.2.4[N] Park, [Suburb O].

   2.3Each alternate Saturday from 9.00 am to 11.00 am, the first such time to occur on Saturday, 19 November 2016 at one of the following locations and supervised by [R Group]:

   2.3.1[Suburb I Shopping Centre];

   2.3.2[P Park, Suburb I];

   2.3.3[Suburb I] Library;

   2.3.4[Q] Park.

   3.That the father advise the mother by text message by 7.00 pm on the day before the commencement of time as to which of the locations referred to in Order 2, the child's time with the father shall take place and the mother shall deliver the child to that location and collect her from that location.

   4.That the father be permitted to bring family members to the times the child spends with him.

   5.Notwithstanding any other order, the child shall spend time with the father from 1.00 pm to 4.00 pm on Christmas Eve supervised by [C Group] at one of the locations referred to in Order 2.2.

   6.That for the purpose of Order 2, time shall occur at a single location as elected by the father, in accordance with the terms of Order 2, unless the contact supervisor deems the weather to be inclement and a change of location is necessary.

   7.If the location at any time is changed in accordance with Order 6, the father shall immediately inform the mother via text message.

5. It was noted:

   A.That the parties expect that the report of [Dr S] will be released on or about 14 December 2016.

   B. The father does not agree that it is either necessary or appropriate that the time set out in these orders should be supervised or otherwise restricted by locations but has agreed to same in expectation that the report referred to in A will be released on that date.

6. Interim parenting issues were stood over to 16 January 2017 pending the anticipated release of the Single Expert Parenting Report.

7. On 16 December 2016 the Single Expert Report prepared by Dr S was released to the parties.

8. The interim hearing proceeded on the basis of short submissions on 16 January and judgment was reserved.

Documents relied on:

1. The mother relied on:

   a)Her Amended Application filed 19 September 2016,

   b)Her affidavits filed 19 September 2016 and 11 January 2017.

2. The father relied on:

   a)His amended Response filed 5 October 2016,

   b)His affidavits filed 6 October 2016, 10 November 2016 and 13 January 2017,

   c)The affidavit of his treating psychiatrist Dr T filed 28 October 2016,

   d)The affidavit of his treating psychologist Mr U filed 8 November 2016.

Background

1. The issue for determination is the question of whether the child should, pending hearing, spend unsupervised time with the father.

2. On interim hearing the father sought orders that, in summary, provided for the child to spend a short period of further supervised time then gradually increasing periods of time with him on a day basis three days per week for about six months and thereafter overnight time midweek and on weekends provided that such times were supervised by R Group or various named persons who were to provide appropriate undertakings to the Court. None of the father’s proposed supervisors provided any evidence in support of the father or their consent to be involved in such supervision.

3. The father further proposed that changeovers be implemented by the mother delivering the child to and collecting the child from the former matrimonial home at Suburb F. The father occupies the home to the exclusion of the mother and child. The mother after separation relocated to and now resides at Suburb V with her parents, some 30 kilometres away.

4. The mother proposes that the child live with her and that the child have time with the father on a supervised basis for several hours on Tuesday, Thursday and Saturday each week. Such time to occur on Tuesday and Thursday in the Central Coast area and on Saturday at a location nominated by the father but excluding the former matrimonial home.

The mother

1. The mother provides a detailed history of the parties’ relationship. The father’s mental health issues have overshadowed their relationship. The mother perceives him to be critical, controlling, coercive and self-focussed. She asserts that he has had little meaningful engagement with the child since birth.

2. The mother further complains of the father speaking inappropriately in the presence of the child such as speaking about his dream of being sexually abused and other bizarre occurrences.

3. The mother asserts that the father’s conduct was also an issue in his workplace.

4. The mother was diagnosed with depression in 1999 and remains on medication. The Single Expert reports as to the mother’s mental health as follows:

   142. I think the mother’s mental health could be best described as well managed but longstanding depression. The mother clearly has had episodes of depression, poor self-esteem and poor body image in the past. These are generally managed by taking antidepressant medications and have been managed in the past by use of psychological intervention. I think that the mother most likely had a period of low mood in the postpartum period, which was managed by psychological treatment in addition to medication. Currently, I think the mother is generally asymptomatic for depression.

   143. With respect to anxiety, I think the mother has had a history of mild anxiety but not to the extent that would meet criteria for an anxiety disorder. The mother appears to be functioning well in her role as parent and appears to be able to allow the child to appropriately risk take and individuate. I did not find any indication that the mother has any other anxiety disorder such as obsessive-compulsive disorder or other dysfunction.

   144. A review of the subpoenaed material indicates that the mother was receiving treatment from a clinical psychologist, [Dr W] and that the general theme of this intervention was to assist the mother in coping with the relationship with the father. The notes indicate that the mother has had conflict with her own mother and may have had difficulties being assertive with her own mother at times. However, there is no indication in any of the subpoenaed material that the mother has had a clinical anxiety disorder.

The father

1. The father acknowledges that he has suffered from depression for over 20 years with the severity of the same varying over that time.

2. He asserts a more engaged role in the life of the child notwithstanding, he says, the mother’s efforts to limit his engagement with the child. The father is critical of the mother’s parenting practices.

3. He asserts that separation was a surprise to him.

4. In the Single Expert Report (Exh “B”) Dr S considers the father’s mental health issues as follows:

   131. The father has a clear and well-documented history of depressive disorder for which he has received various treatments over the years. It appears that this pattern did not emerge until the father was a young adult and was under stressful circumstances living independently in Sydney. The father’s symptoms have included low mood, suicidal ideation and interpersonal relationship difficulties. The father’s account suggests that in the past he has used a combination of psychotropic medication and some therapy to manage his depression. It is difficult to know what to make of the father’s history of suicidal ideation. On the one hand, he spoke about clear and consistent thoughts of killing himself and had engaged in actions such as writing comprehensive suicide notes, which he carried with him for long periods of time. On the other hand, he now says that he was never really serious about these things and did not think he was ever a suicide risk. However, he amended this and later said that if he had had an adverse experience during one of the very “low times” then he may have been a suicide risk.

   132. It appears that the father has engaged on a course of psychotherapy he says has largely resolved his suicidal ideation and significantly improved his symptoms of depression. He says that he has traced the “source” of his depression to his family origins and issues with respect to the parenting he received.

   133. Against this background, however, the father has been able to generally maintain employment at a high executive level. His recent work indicates that he does not have deficiencies in cognition or intellectual capacity. There is no indication from the case history given to me that the father has had a pattern of bipolar disorder as was indicated by the mother.

   134. However, there do appear to be other difficulties with respect to the father’s mental health that have impacted on interpersonal relationships in the past and have certainly impacted on the co-parenting arrangement currently.

   135. The father’s history suggests that there have been difficulties in the past with respect to anger management. However, he preferred an explanation to say that this was not inconsistent with the level of anger expression he sees with his peers. However, the accounts of the mother and the maternal grandparents and indeed some of the father’s own accounts suggest that in the past he has been impulsive and reactive particularly in circumstances where he must tolerate others. For example, the dispute at the Christmas event at the maternal family home where he walked out; and other times where he reports becoming angry at young children suggest that he may find it difficult to tolerate some frustrating situations. In addition, I note that the father has had significant and lengthy estrangements within his own family of origin. Curiously, although the father denies any trauma, violence or significant disturbance in his family of origin, he blames his parents for giving him a psychological disorder.

   136. I note also from the subpoenaed material that there were previous episodes where the father’s impulsive or angry behaviour caused difficulties. For example, Mr [U]’s notes (24 February 2014) indicate that the father described “a pattern of vitriolic outbursts whenever he felt attacked or criticised that has alienated him from most colleagues”. However, on interview with me, Mr [U] felt that these issues were largely resolved and that the father does not have a personality disorder or a problem with impulsivity.

   137. The mother’s account to me also suggests that the father may have had some difficulties in the interpersonal relationship realm. Her account of the father’s disinterest in the pregnancy, birth and subsequent time are indicative of a high degree of dissociation on behalf of the father. The father’s account to me of this time was somewhat curious; on the one hand he spoke about his concerns about the health risks of the pregnancy, but on the other hand he seemed to be somewhat indifferent to the mother’s experience at this time. The mother’s account seems to be that the father views himself as always “right” and the father concurred with this assessment somewhat.

   138. I note that from the subpoenaed material that the clinicians at the [Suburb I] Hospital community mental health team described the father has having “a background of treatment resistant depression and narcissistic personality structure characterised by interpersonal sensitivity, lack of empathy, emotional dysregulation and impulsivity”.

   139. On balance I think these aspects of the father’s mental health could be considered features of his personality, which make it difficult for him to get along with others, solve conflict, tolerate difficulties and maintain relationships over the long-term.

   140. I think an accurate assessment would be that the father has a rather rigid and self-focussed personality, which has historically caused significant interpersonal relationship distress. It is possible that these symptoms are at the level of personality disorder, and most likely narcissistic personality disorder. However, I am wary of making such an assessment, on the basis of one observation meeting of the father and reviewing the material.

   141. I think that over time, such personality features are highly relevant to parenting. I do not consider the father a risk to the child in terms of impulsiveness and anger outbursts, because he has a very protective and proprietal view of her. However, I think that over the course of her lifetime, the child may find it difficult to deal with these aspects of her father’s personality, particularly in circumstances where she disagrees with him or seeks to negotiate and compromise with him. Further, I think that these features of the father’s personality are highly relevant to his capacity to cooperate and solve problems with the mother.

5. The father has substantially had time with the child as provided for in orders to date. He relies on the supervision reports in his affidavit, asserting that they evince a good relationship between he and the child and no incidents of concern.

6. The father relies on reports from his treating mental health practitioners: his psychologist and psychiatrist who purport to express opinions as to the lack of risk the father poses to the child and the desirability of there being “unfettered access” to the child. The regrettable circumstance is that the father’s treating practitioners have not conferred with the mother as to her many concerns as to the father’s behaviour and his emotional regulation during their relationship nor have the practitioners engaged with the child at all.

7. Regrettably, Dr T gives little detailed information in her report as to her engagement with the father since about September 2015, the basis for her assertions as to his mental health or any prognosis or treatment pathway.

8. Mr U has been engaged with the father since February 2014, more than two years before separation on a weekly basis. He reports that the father has seen “a range of mental health professionals with mixed if limited success”. Mr U reports that as at July 2016 the father’s suicidal ideations had remained constant despite repeated medication until the last six months. Mr U  has also not seen the mother or the child over the three years of treating the father despite her intimate involvement with his patient until their separation. 

9. The opinions of the father’s health professionals need to be tested against all the evidence at a final trial.

Interim Hearings

1. In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:

   120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122. Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

   (See also Keats [2016] FamCAFC 156)

1. In Deiter& Deiter [2011] FamCAFC 82 the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

2. In George & George [2013] FamCAFC 182 the Full Court in referring to Deiter & Deiter said that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) on the same issue observed:

   18.      …that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

3. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

THE LAW:

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s61DA(2)],

   b)in interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3)].

   c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s61DA(4)]

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s65DAA(6)].

7. In the circumstances of this matter as discussed it is not appropriate that the presumption apply. There is no order sought by the parties as to the allocation of parental responsibility, as such no order will be made.

Best Interests:

The Primary Considerations: s60CC (2)

1. The primary considerations 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). This is a pertinent consideration in this matter.

s60CC(2)(a) – “meaningful” relationship:

1. In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. There are significant factual disputes between the father and mother as to the history of their relationship and more particularly the circumstances as to the father’s behaviour and mental health issues. The child presently has regular time with the father and by all indications their relationship is developing appropriately.

4. There is no issue that the child should remain in the primary care of the mother.

s60CC(2)(b) – need to protect

1. This factor is in itself substantially determinative of the present interim application.

2. The Court needs to proceed cautiously until such time as appropriate evidence is available and tested in relation to the father’s (and to some extent the mother’s) mental health and the risks, if any, that such may represent to the child. The evidence of the father’s mental health practitioners is of little utility until it is tested against all the facts and not just those provided to them by the father in vacuo.

3. The Single Expert opines:

   149. I do not think that [the child] is at an unacceptable risk of harm in the care of the father despite his long history of suicidal ideation. Despite the father’s expressed history of suicidal ideation, he has not had a single episode of psychiatric hospital admission, beyond one presentation to Casualty. Further, he has not engaged in a single act of self-harm or had a specific suicidal plan that he has taken action on. According to the mother, the father could be in a dissociative state. It is possible, of course, that if the father was in a severe depressive episode, then he may not be attentive to [the child] and may be somewhat dissociative. However, I think that this risk is low, given the father’s capacity to maintain his attentiveness in other domains of his life. I am also of the view that the father’s expressed suicidal ideation occurred largely in the context of the relationship with the mother and previously, had a high degree of manipulation about it. The reports of both treating practitioners indicate the father has had an improvement in mental health and functioning this year and that they do not consider that his mental health currently has an impact on his parenting capacity.

4. Such opinion is, as submitted by the mother, to be tested at final hearing.

5. The Single Expert expresses concern as to the father as follows:

   153. With respect to the father, I think that he also has an untested capacity to facilitate [the child’s] relationship with the mother. The father appears to be excessively critical of the mother in circumstances where it is not warranted in my view. The father is also extremely critical and was vocal about his opposition to the maternal grandparents. In circumstances where [the child] has extremely close and secure relationships with the maternal grandparents and lives with them, I think that this may be problematic for [the child] over time, particularly as she becomes aware of the father’s attitude to the maternal family. The risk is that [the child] will be caught in a conflict between the maternal family and the father. I think that this risk is high at the current time.

6. Again further concerns are expressed by the Single Expert:

   158. With respect to the father, I think he has a more limited capacity to provide for the needs of [the child] including her emotional and intellectual needs. I was concerned that the father pitted himself against the mother and described himself as a parent who was going to allow [the child] to develop herself, in contrast to what he criticised the mother for, that is being over controlling. I think this demonstrates a very limited insight of the father into the very good parenting capacity of the mother, and the degree to which such attitudes will conflict [the child]. Further, I think that the father does have a high degree of self-absorption and prioritised his needs over anybody else’s, including [the child’s]. These personality characteristics may mean it is difficult for him to prioritise [the child’s] needs above his own in circumstances where they conflict.

   159. I think that the father also has a relative blind spot with respect to [the child] and her relationship with her mother. The father characterises this relationship as pathological. However, I think the father has also been enormously critical and controlling of the mother. I found his description of the mother’s incapacity to keep the household clean and the impact this had on his stress levels and mental health as extraordinarily insensitive, particularly when he was talking about a time when the mother had the care of a very young baby and he was, by his own admission, doing nothing or little to help. The father was also extremely critical of the involvement of the maternal family at a time when he had little or no involvement, such as taking the mother to prenatal appointments, attending [the child’s] birth and so on.

   160. I found the father’s self-absorption extended to his current position with respect to his maintaining his residence at the former matrimonial home. He was of the view that it would be in [the child’s] best interest for her to be living in the home, but he felt that it was more important for him to maintain his mental health, which he saw as contingent upon his living in the household. I think that this is a good example of the ways in which the father would fail to elevate [the child’s] needs above his own, particularly where he perceives his need for a particular set of circumstances to exist so that he can maintain his mental health. The father had very limited expressed insight into the impact on [the child] of living with her mother and grandparents in somewhat cramped circumstances. I found it curious that the father was also critical of the maternal grandparents to an exceptionally high degree and also critical of the mother’s alleged enmeshment with [the child], yet was prepared to think it suitable that she remained living in such an environment.

7. The Single Expert considers the final orders sought by both parties and opines:

   The potential impact on the child of the Orders sought by each parent.

   164. I have carefully considered the Orders sought by each parent. It is the mother’s case that she seeks sole parental responsibility for [the child] and seeks to have a continuation of supervised contact with the father. I am concerned about the mother’s proposal of ongoing supervised contact for [the child] with the father. Firstly, I think that supervised contact is not a suitable long-term solution for parents and children. Over time [the child] will wonder why contact with her father is being supervised, may come to resent such contacts and the practical nature of the supervision sessions will become onerous to her. While I think the mother has had reasonable grounds to propose supervision, in the context of the father’s history of suicideality, I do not think he poses an unacceptable risk to [the child] and think that the mother’s position, over time may need to be altered.

   165. I have also considered the father’s proposed Orders for time with [the child]. He wants to have immediate unsupervised contact with [the child] in a graduated manner, such that for two months [the child] will spend time with him for two hours each Tuesday, for one whole day on Saturday and for half a day on Sunday. The father’s proposed Orders have [the child] spending from 9am until 5pm on one weekend and two hours each alternate Tuesday and five hours each alternate Sunday. It is my view that [the child] does not have the requisite capacity to cope with such a step up. For example, and as expressed previously, [the child] has only ever spent a few short hours without her mother’s care in any context.

   166. I think that a more suitable option for [the child] would be for her to spend short periods of up to three hours with the father up to three times a week. After approximately three months of such a regime, I think that [the child] would then be able to spend either half a day or a short day (such as from 9:30am until 3pm, as might be the case in a preschool day) with the father.

   167. I am concerned that the father’s proposed Orders will have [the child] spending almost every weekend in the care of the father. I understand and respect the father’s work commitments; however, over the long-term such an arrangement would mean that the father would not be able to pick up or take [the child] to preschool, which are important parts of a young child’s life and comprise an important aspect of a parents’ meaningful involvement.

   168. With respect to overnight contact, I think that this will largely be dependent on the living situation of each of the parents and how well [the child] adapts to spending more regular time in her father’s care. I think that given the history of care and the current attachment relationships that overnight contact with [the child] and the father should not be considered until after her fourth birthday. At that time, a graduated approach to [the child] spending overnight time with the father would be suitable.

8. Caution must be exercised in extrapolating from observations made in the brief, intense supported and immediately accountable context of supervised contact.

9. As can be seen, there are significant issues for final determination after the appropriate testing of all the evidence, not the least of which is the testing of the evidence of the father’s treating mental health professionals.

10. The circumstances of this matter are such that upon delivery of judgment in relation to this interim issue trial directions will be made with a final trial as to parenting and property expected within about four months thereafter.

The Additional Considerations:

1. S60CC(3) sets out the additional considerations:

   a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   to communicate with the child;

   ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)any family violence involving the child or a member of the child's family;

   k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)any other fact or circumstance that the court thinks is relevant.

1. Regard has been had to each of the additional considerations set out above. Many of the considerations remain to be considered appropriately in the context of a defended hearing where evidence can be tested.

2. The mother’s proposal provides the child with further time with the father each week on a Thursday with flexibility for the father as to venue within the general limitations as proposed by her. It is to be inferred that the mother seeks to avoid any distress to the child in the event that she is taken to her former home by the father.

3. As discussed above, the primacy of the protective considerations in reality determine this interim application. It is appropriate that there be caution exercised until evidence can be tested at final hearing. 

4. In all of the circumstances it is in the best interests of the child that the mother’s proposals be substantially implemented pending the proximate final hearing. Orders will be made accordingly.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 March 2017.

Associate: 

Date:  21 March 2017