Taro and Sanders

[2018] FamCA 1103

FAMILY COURT OF AUSTRALIA

TARO & SANDERS [2018] FamCA 1103

FAMILY LAW – CHILDREN – Interim – Assessment of risk – whether the mother presents as an unacceptable risk of harm to the child – orders made in the best interests of the child for the child to live with the father.

Family Law Act 1975 (Cth) s.4, 60CC, 68B
Goode & Goode (2006) FLC 93-286 Marvel & Marvel (2010) 240 FLR 367 Banks & Banks (2015) FLC 93-637
APPLICANT:	Mr Taro

RESPONDENT: Ms Sanders

FILE NUMBER: BRC 3460 of 2018

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 7 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Ehlers

SOLICITOR FOR THE APPLICANT: Steindl Bradley & Associates

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER: Ms V Khushal
Bridges Family Law Specialists

Orders

1. That the child, X born … 2014 (“the child”) live with the father immediately.

2. That the child be released from Child Dispute Services into the care of the father today.

3. That the father shall be entitled to choose and enrol the child in an appropriate kindergarten and shall provide to the mother details of that kindergarten once that decision has been made.

4. That pursuant to s.68B of the Family Law Act 1975, the mother is restrained and an injunction issues restraining the mother from approaching the child at any time, including at her place of residence, kindergarten or in public settings.

5. That these proceedings be adjourned for Case Management Hearing at 9.30am on 20 December 2018 in the Family Court of Australia at Brisbane.

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 Taro & Sanders 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 BRISBANE

FILE NUMBER: BRC 3460 of 2018

Mr Taro

Applicant

And

Ms Sanders

Respondent
T

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. This is a very difficult issue done in less than ideal circumstances in some ways.  X (the child) was born in 2014.  She is four years of age.  She is the only child of a somewhat ambivalent relationship between the Applicant father, Mr Taro and the Respondent mother, Ms Sanders.  These parties met on the internet and really knew nothing about each other when they decided to have a child.  It is not clear that that was actually a conscious decision but nonetheless that is what happened.

2. As a result, there have been difficulties in consistent time occurring between the child and the father.  In this interim hearing today, it is impossible to make any findings as to all the circumstances of that difficulty.  The father says that the mother has not facilitated time.  The mother says there were risks that she identified and I take it that she felt the father had been financially and/or physically abusive towards her.  It is clear that the mother has had a history of violence but many years ago.  She was incarcerated for serious offences in the mid-1990s.

3. The mother has brought to my attention today that there is evidence in the subpoenaed material that the father has had family violence issues before their relationship began.  These sorts of cases only identify the difficulty that is encountered when people choose to meet on the internet and, without knowing anything about the other person, choose to have a child which is a lifelong commitment.  It should be noted that neither parent could be said to be young parents.  The father is now 42 years of age and the mother is 43 years of age.  The mother has another child, Ms B, and grandchildren.

4. The more important issues though that I need to concern myself with today in view of the competing proposals are – is that there is a clash between the risks which might be apparent on the face of the material and the way of protecting the child from that risk identified by the family report writer and the Independent Children’s Lawyer who obviously support the father’s application that there should be the immediate change of residence.  The transcript will reveal that I have today done my best to try and gather as much information as I can.  The mother is, she would say, on any test, an extremely intelligent lady.  She is certainly very articulate.  She is very passionate about her case but she is unrepresented.

5. Her material reflects a mixture of emotion, statements of value and facts.  I have no doubt that she is a passionate mother who dearly loves her child.  The father has, for whatever reasons, had limited time with the child.  One of the concerns the Court had when reading the family report of Ms C, which supports a change of residence immediately, was that Ms C had not had the opportunity, when she interviewed the parties and saw the child on 30 October 2018, to see the child with the father.  The reason for that is that the mother refused to give her consent to that and said it would be contrary to the child’s best interests and would be a breach of the Court’s obligation to provide safety for the child.

6. Before lunch today, the Independent Children’s Lawyer asked me to make a direction that Ms C, the report writer, (who had also prepared an earlier Child Inclusive Conference Memorandum which is before the Court) see the father with the child today.  That occurred today over about half an hour and Ms C’s evidence, in short, was that the interaction was unremarkable.  In particular, there was nothing in the interaction that would suggest the child was fearful of the father and, in fact, in the short, albeit a somewhat artificial environment of a child observation that occurs in these matters, there was nothing of a concern arising from the interaction.

7. I am satisfied from Ms C’s evidence that the child was aware she was seeing her “daddy”.  It appears clear that the last time the child had spent time with the father was in September last year.  Ms C, as a result of today’s observations, does not make any recommendations different to those set out in her report at paragraphs 160 to paragraph 162 as follows:

   160.    It is my recommendation the child should live with her father.

   161.    It is my recommendation that in the short term, [the child’s] time with her mother needs to be supervised to assist her to transition to her father.  Such time should ideally occur on a frequent basis, no less than once a week.

   162.    In the event the mother appropriately addresses her mental health and misuse of alcohol, [the child’s] time with her mother can become unsupervised.

8. In my view, although all the report is untested at the moment and the Court is not bound by any family report, some of the observations made by Ms C are most helpful, in particular, paragraphs 122 through to 137:

   122.    On the information available to me, the state of [Ms Sanders’] mental health and alcohol consumption is worrying, and are more likely to have a detrimental effect upon the child than any limitation [Mr Taro] may have as a parent.

   123.    Experiencing mental health issues, in and of itself, does not pose a risk to children.  There are many parents who have mental health issues that very competently parent children.  The risk lies, in my opinion, in not recognising the state of one’s mental health, the effect it may have upon one’s functioning, and not receiving treatment for it as required.

   124.    [Ms Sanders] experiences schizophrenia.  She does not deny this, or at least she did not at the time of the Child Inclusive Conference.  During this assessment it was not as clear what her position was.  Assuming [Ms Sanders] still accepts her schizophrenia diagnosis, the prevailing risk to [the child] lies in [Ms Sanders’] refusal to seek treatment, and what effect in turn her untreated mental health may have upon her functioning, more specifically her parental functioning.

   125.    [Dr D’s] assessment may provide the Court more insight with regards to this, but [Ms Sanders’s] presentation during this assessment combined with independent information available to me suggest the child experiences or is at risk of experiencing a level of volatility and unpredictability on the part of her mother, such that it is likely to be rather confusing for [the child], and at worse, scary for her.

   126.    More specifically, [the child] is likely to experience her mother as emotionally unavailable to her and inattentive to her needs.  She will likely experience poor supervision, and compromised care, in that her mother may experience difficulties perceiving and judging risk and danger.  [The child], because of all of this, may internalise that the world is an unpredictable and confusing space.

   127.    In turn, there is a likelihood [the child] will display a level of emotional dysregulation, difficulties in her affect, poor concentration, irritability and behavioural disruptions.

   128.    The accumulative effect of being exposed to this style of parenting and home environment on a long term basis is that [the child’s] engagement at school may be compromised, and as such her school performance.  She may experience difficulties with forming peer relationships and/or sustaining them, and more concerning, experience impaired and poor mental health outcomes, such as depression, anxiety, and low self-esteem.

   129.    Some of this could be mitigated or minimised if [the child] was surrounded by a support network of consistent professionals such as childcare/school staff, and/or GP, but because of [Ms Sanders’] apparent transience with accommodation and location, this is unlikely.  It therefore means there is no one to intervene to protect the child.

   130.    [Ms Sanders] perceiving [the child] as potentially being on the autistic spectrum, her perception [the child] may need medication, and her concession, it appears, that [the child’s] behaviour is such that she (as in [Ms Sanders]) is struggling to cope is possibly symptomatic of the mother’s mental health, or could possibly be evidence of [the child’s] exposure to and experience of the mother’s mental health.

   131.    Add to this, the level of alcohol [Ms Sanders] reports to consume, on either account, the one she provided at the time of the Child Inclusive Conference, or the one during this assessment, and [Ms Sanders’] parenting of [the child] is likely further compromised.  [Ms Sanders’] reported alcohol consumption is excessive, such that it is hard to believe it would not have some effect on her cognition, and capacity to be attuned to [the child’s] needs and her responsiveness to such.

   132.    This inevitably brings me to the issue of family violence.

   133.    Both parents described their former relationship as being characterised with a level of family violence, with each claiming the other was primarily responsible.  Given [Ms Sanders’] issues with regards to her mental health and her excessive consumption of alcohol, I am persuaded to believe [Mr Taro's] description is more likely to be the more reliable account, and I suspect, as I did at the time of the Child Inclusive Conference, that [Ms Sanders’] perceptions of her relationship with [Mr Taro] are shaped by her untreated mental health.

   134.    This is not to say [Mr Taro] did not perpetrate violence towards [Ms Sanders], it is probable he did, but it is likely to have only been verbal in nature, and in response to her emotionally dysregulated behaviour.  Independent information reinforces [Mr Taro's] experiences of [Ms Sanders], in that what he has experienced, others appear to have done so as well, and thus in that context, it is likely to be very difficult to maintain one’s own emotions.

   135.    It is thus my assessment the parents’ relationship was characterised with conflict instigated violence triggered by [Ms Sanders’] mental health and alcohol consumption.

   136.    The risk to [the child] of being exposed to family violence between the parents is presently mitigated by the lack of contact they have with each other.  It goes without saying that the risk to [the child] of being exposed to family violence increases if the scope of contact between the parents increases, particularly whilst the mother presents as she does currently.

   137.    Maintaining limited contact between the parents is therefore vital to ensuring [the child] is not exposed to family violence.  [Ms Sanders] addressing her mental health issues and misuse of alcohol would also reduce the likelihood of violence between the parents, and [the child] being exposed to such.

9. In particular, the issue which the Court is being asked to deal with today is dealt with by Ms C at paragraph 152 of her report where she says:

   152.    This said, on balance, I am of the view that the adverse effects [the child] is likely to experience arising from a change of residency to her father are not likely to be as detrimental to her long term wellbeing and welfare to those arising from the mother's mental health and alcohol consumption.  In fact, the effects of a change of residency are likely to be short lived.

10. Ms C, having seen the father with the child today and, as I said, understanding the limitations of such a short observation, saw no need to vary her opinion expressed critically at paragraph 152.  The competing proposals between the parties are that the Independent Children’s Lawyer proposes the immediate change of residence that is supported by the father.  Both the Independent Children’s Lawyer and the father say that the child should have, on an interim basis, supervised time with the mother.

11. The mother, as was said, represents herself and in her case information document seeks orders that:

    1.        That until further order including consent, the child, [X] spend no time with the father/Applicant until acceptable risk mitigation has been achieved.

    2.        That [the child] shall continue to live with the Respondent as sole responsible parent with exclusive parental rights bar access at the discretion of both the Court and the contact centre supervisor, over [the child] until further ordered.

    3.        That at the discretion of order 2, if ordered, the same contact centre supervisor which [the child] would have independent visits with initially to develop trust to mitigate a psychological/emotional abuse and neglect risk; will attend all visits between [the child] and the Applicant at said contact centre.

    …

12. She also seeks in her application that the father contribute 80 per cent of all travel costs associated with the contact centre.  The issue for determination, therefore, is where this child should live.  The child is currently in child care and has been in child care since about midday today.  As the Full Court identified in decisions such as Goode & Goode (2006) FLC 93-286, interim hearings are, by nature, truncated. It is extremely difficult for the Court to make findings. In this case, the Court, unlike most interim decisions, has the benefit of not only a recent family report but a significant psychiatric assessment by independent forensic psychiatrist, Dr D. I will return to that evidence shortly.

13. Nonetheless, as the Full Court identified in Goode (supra), the Court needs to be careful about making findings about things which may change at a final hearing.  The mother has referred me earlier to the decision of the Full Court in Marvel & Marvel (2010) 240 FLR 367 and the cautious approach which needs to be identified. I have, in turn, referred the parties to the decision of the Full Court in Banks & Banks (2015) FLC 93-637 where the Court made clear, on interim hearings, that even though Goode (supra) indicated the factors set out in section 60CC(2) and (3) should be considered where relevant, it is not an improper approach for the Court to consider the most pressing issues on an interim hearing.  In a case like this where there are these competing proposals for interim residence, I do so now.

Risks of the father

1. The mother identifies the risks of the child either being with the father or in his care, but, in fact, dealing with the father are, sexual abuse.  The arguments that the mother advances about sexual abuse of a child are that the child made disclosures to her.  She says that she made a report to the police.  I accept that she did.  The Independent Children’s Lawyer says that the mother never provided further information to the police about the sexual abuse, and therefore the sexual abuse has not been investigated either by the police or the Department of Child Safety, Youth and Women (“the Department”)

2. The mother also says that the father had a propensity for sexual abuse and she refers to an incident where the child was about two months old and the parties were having sex and the father is alleged, which he denies, to have said something inappropriate about his infant daughter.  The Court can never ignore allegations of sexual abuse but they need to be put into context.  I am concerned that this highly vigilant and protective mother would so easily, merely because the child will not be seeing the father – although, it seems, that he did on an unsupervised basis on many occasions with her support after the alleged allegations occurred – would not further progress this matter through the Department or through the police.  I am not persuaded on the limited evidence from the mother that the child will be at risk of sexual abuse from the father.

Family violence

1. The mother acknowledges that there are no instances of family violence as between her and the father other than, she would say, some financial control or abuse relating both during the relationship and his lack of support for her and since separation – since child support issues arose.  I accept financial control and abuse can satisfy the definition of family violence (s.4).  There is a suggestion from the father that he paid money voluntarily to the mother.  The mother says that is not the case.  On an interim basis, it is not possible for the Court to assess whether child support payments over the life of this child were paid voluntarily or not.

2. There is no domestic violence order between the parties.

3. The mother does not assert that the child has been the subject of domestic violence in the care of the father.  The mother does, however, refer the Court to as yet untested and verified by other persons, notations in police records that in about 2017, an event involving the father and a former partner occurred.  The father did not refer in his material to that other event.  He should have done so.  There needs to be absolute honesty under affidavits to the Court in such sensitive matters as a child’s welfare.  Nonetheless, there was no evidence that any current family violence order in respect of any other person is in existence at the moment and I have no way of knowing what the circumstances of the interaction with the father and his partner at the time was some 12 months ago.

4. The mother says that the paternal grandmother and the paternal aunt are potentially a risk because they do not have an emotional attunement to the child.  As I understand her submission, that is based on the fact that they have either minimised or disguised what she now says was the father’s true family violence behaviour reflected by events in 2011 with other partners before they got together.  Neither the paternal grandmother or the aunt have had a chance to answer those suggestions, although the paternal grandmother has filed an affidavit indicating that she is prepared to support her son if the child lives with him at her home.

Other risks

1. These risks are, of course, matters that will need to be tested at trial to some degree and I take them into account.  However one of the biggest concerns the Court has of a change in residence to the father is that the father is a very much untested parent who has had limited time with the child and, as Ms C identifies, may be naïve in understanding how difficult this exercise might be.  Those concerns and the untested allegations by the mother of risk lay heavily on my mind and are in favour of no change of residence.

2. However, the father and the Independent Children’s Lawyer say that the mother also presents with significant risks.  The mother could not say that her past behaviour has not been the subject of recent attention.  The Magellan report which was procured because of the allegation of sexual abuse against the father makes little mention of that incident – and we know why - because it was not further pursued by the mother.  However the Magellan report sets out a number of child concerns arising since the birth of the child.  They involve allegations of excessive use of alcohol when the child or other children were in her care including at the Exhibition last year.  These concerns relate to the mother.

3. They involve the mother’s alleged erratic behaviour whilst in the care of hospital staff.  It may not have been the Magellan report that the mother was expecting, but, nonetheless, as I have taken the mother through the events and one, in particular (at the Brisbane Exhibition in August), I have concerns that even though the mother says now an Exhibit 1, a medical certificate from her general practitioner, Dr E, suggests that her current liver function tests are not of concern, I am concerned that the mother’s use of alcohol has at times compromised her capacity.

4. It may be that that the mother’s use of alcohol is not a problem at the moment.  The mother is under significant stress with these proceedings as a result of the allegations against her and, it seems, with limited financial circumstances.  This has caused some instability in her lifestyle and household.  Recently, she was in a domestic violence shelter, presumably, because of the allegations against the father in this case.  How that could have manifest in that support would need to be further investigated as far as I am concerned.

5. Nonetheless, the concerns that the mother has been experiencing might have resulted in clear action by the Department who knew about the mother and of the risks to the child.  I find it yet to be explained properly to me why the Department, with this list of concerns, has apparently taken no action and the mother, not unreasonably, points to that inaction as a basis for saying that, although the concerns might, in part, be true, they were never sufficient for the Department to intervene.  She says that the father was assessed by the Department.  It is not clear to me what form of assessment he was undertaking but it seems to me it is unlikely to be as thorough as the one undertaken by Ms C.

6. I have already acknowledged that one of the risks I have to raise is that the child has not spent time with the father for any significant time and certainly has not lived with him.  However, the more significant risk issue arises from the report of Dr D.  I have, I think, fairly put to the mother his conclusions, found in his report dated 28 August 2018, and in particular this conclusion:

   She gave a good account of her personal circumstances and as such any DSM-IV diagnosis can only be based on past medical history.

   She has been responsible for the care of [the child] on a full-time basis for the past four years and Department of Child Safety appear not to be engaged in any time with regard to this and no concerns have been brought before the police.

   [Ms Sanders] on the basis of my evaluation is relatively stable and stationary at this time with no evidence of any active psychotic symptoms apart from her fixed delusional material.

   Under the circumstances given the documented collateral history, [Ms Sanders] is currently diagnosed with Chronic Paranoid Schizophrenia with her currently being followed up at the [F] Medical Centre under the care of [Dr G] who, in the collateral history, obtained on 10 September 2018, indicated [Ms Sanders] has not attended the clinic as from July and has not required any psychotropic or antidepressant medication since her arrival in North Queensland.

   I believe that [Ms Sanders] has Schizophrenia which is not appropriately managed.  She has an active Delusional belief and her drinking behaviour is influenced by her delusional material.  I believe she needs referral to the appropriate Adult Mental Health Clinic in her area.  She requires psychiatric review and review of medication as part of any ongoing court orders.  She cannot be placed in charge of a child without appropriate mental health care given her Diagnosis, poor compliance, her longitudinal history and propensity for violence and lack of insight regarding her current delusion that perpetuates her alcohol use.

   I believe the Family report by [Ms C] is extremely important in this case in terms of observations of the child with both her Mother and Father particularly [Ms Sanders’] current attitudes, outlook and cooperation with regard to the current matters before the court.”

7. They are concerning.  Rarely does the Court receive a report by an independent, forensic specialist who has seen both parties but, admittedly, not the child, who has reviewed significant past medical records that expresses such a clear opinion.

8. In short, Dr D says, although the child has not been the subject of any discernible harm to date, the mother is not, in his view, an appropriate carer of the child at this stage whilst her paranoid schizophrenia remains unmanaged.  Now, the mother would say that she is managing her schizophrenia.  She has not been on any psychotropic medication since 2011.  There is no evidence that she has maintained a therapeutic relationship with another health professional which might have been anticipated with her diagnosis.  Even when her conduct as a new mother for the child was a concern to the hospital staff, such that they contacted the Department (see Magellan report), seemingly, that did not trigger any ongoing therapeutic relationship for the mother.

9. It has to be at least arguable that the mother has very little insight, maybe because of her condition, to her functioning.  I took the mother to a particular event of concern, that at the Brisbane Exhibition where she had two young children in her care, including the child, and was, on any test, I am satisfied, significantly inebriated such that the children were potentially at risk with many people around the Exhibition at that time.  Rather than the mother acknowledging her actions were inappropriate, she sought in exchanges with the Bench, to justify her actions.  It did not, in my view, do her any credit.

10. In balancing up all these risks, and in particular:

    a)the concern about the child not having had significant time with the father;

    b)the risks identified by Dr D; and

    c)the very highly considered assessment by an experienced family report writer, Ms C,

    I have come to the view that it is in the best interests of the child that she live with the father immediately.  Orders will be made that the child be placed in the care of the father today from child care.

11. I suspect that the amount of time that the child spends with the mother is a matter best left for another day.  I propose to bring this matter back before me at 9.30am on 20 December 2018 for further submissions.

12. That will give the child at least a period of time in which to adjust to the father’s care.  It will give time for the Independent Children’s Lawyer to really identify what arrangements can be made for the child and the mother to spend time because it is my view that supervised time should occur whilst this matter progresses through the Court.  The information before me about the parties’ capacity to pay is insufficient for me to really make any assessment as to their capacity to pay for supervision and the costs of supervision will depend on where the supervision takes place.

13. I will require the Independent Children’s Lawyer to make every investigation possible, knowing where the mother will now live (which may change in view of the child living with the father) but I am very keen that this child have regular time with the mother and I am particularly conscious of the fact that Christmas beckons.  It is not necessary on an interim basis to make an order for sole parental responsibility, however, I will make a specific order that the father shall be entitled to choose and to enrol the child in an appropriate kindergarten and that he will provide to the mother details of that kindergarten once that decision has been made.

14. Pursuant to s.68B of the FamilyLaw Act 1975, I propose to make an injunction restraining the mother from approaching the child at her place of residence, at kindergarten or in public settings.  I would hope that the basis upon which this injunction for the welfare of the child has been imposed can ameliorate in time.  What the Court needs to see, it seems to me on all the evidence, is a more thorough assessment of the mother who will have the benefit of Dr D’s and, in my view, Ms C’s report, about her functioning and the appropriateness of her being unmanaged for her paranoid schizophrenia in a way that has caused such significant concern to Dr D and which, on balance, was the factor which sways me to make the hard decision that the child should live with the father now.

15. I have a concern that the father may underestimate the difficulties the child, once she gets over the novelty of being with the father and her paternal grandmother and maybe cousins and aunt, will suffer.  As I say, much of the evidence suggests that the mother has generally met the physical and emotional needs of this child sometimes under great personal difficulties for this child’s life.  However, the father could well take advice from appropriate health professionals to assist this child coping with the changes, more than just his mother and his sister who no doubt are experienced parents.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 7 December 2018.

Associate: 

Date:  20 December 2018