TIFFANY & TIFFANY

[2014] FamCA 556

FAMILY COURT OF AUSTRALIA

TIFFANY & TIFFANY [2014] FamCA 556

FAMILY LAW – CHILDREN – Undefended Hearing – Where the Mother has not actively participated in the proceedings – Where the Mother has repeatedly sent medical certificates stating she is unfit for court – Where there are concerns regarding the Mother’s mental health – Where the Mother has a history of withholding the child – Where the Father seeks orders that the Mother be restrained from contacting the child and any authority or agency in relation to the child – Where the Father and the Independent Children’s Lawyer agree on final orders to be made

FAMILY LAW – PROPERTY – Undefended Hearing – Where the Mother initiated property proceedings by way of her Response to Initiating Application– Where the Mother has not actively participated in the proceedings – Application for property settlement dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004

Allesch v Maunz (2000) 203 CLR 172
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Tiffany

RESPONDENT:	Ms Tiffany
INDEPENDENT CHILDREN’S LAWYER:	Mr Williams

FILE NUMBER: BRC 11122 of 2010

DATE DELIVERED: 11 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mazur

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Williams Lawyers

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

Children’s Proceedings

1. The Father have sole parental responsibility for the long term and day to day decisions for the child, B (“the child”) born … 2006, including, but not limited to:

   1.1.the child’s education;

   1.2.the child’s religious and cultural upbringing; and

   1.3.issues concerning the child’s health.

2. The child live with the Father.

1. The Mother be restrained from removing the child from either the Father’s care or any school or place in which the child is enrolled or attending and from directing, authorising or allowing any other person to do so.

1. The Mother be restrained from approaching or being near or within

   
   

   200 metres of the vicinity of:

4.1.any school which the child may be attending;

4.2.the Father’s residence;

4.3    and from directing, authorising or allowing any other person to do         so.

1. The Mother spend time and communicate with the child at such times as are agreed in writing between the Mother and the Father or pursuant to an Order of this Honourable Court.

2. The Mother be restrained and an injunction issue preventing the Mother from contacting the police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency in any way whatsoever and in particular to:

6.1.enquiring as to the place of residence of the child;

6.2.enquiring as to the welfare of the child;

6.3.enquiring as to the place of residence of the Father;

6.4.enquiring as to the welfare of the Father; or

6.5.providing to them copies of documents, including Court documents and transcripts;

without the written consent of the parties or, alternatively, with the permission of the Court.

1. Neither parent shall discuss these Court proceedings in the presence or hearing of the child or show him any documents relating to these proceedings, and shall not permit any other person to do so.

2. To the extent that the exception provided for in section 121(9)(a) of the Family Law Act 1975 (Cth) or the other provisions of that sub-section do not otherwise authorise the same, the Independent Children’s Lawyer shall have leave to publish all such documents and information relevant to these proceedings including expert reports to any person or entity providing counselling or psychological/psychiatric treatment to the child.

3. The Father be permitted to provide a copy of this Order to the child’s school, the police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency.

4. The Independent Children’s Lawyer be discharged.

Property Proceedings

1. The Mother’s application for property settlement contained in her Response to Initiating Application filed on 25 February 2011 be dismissed.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

A.In the event the Mother brings a further application under Part VII of the Family Law Act 1975 (Cth) it would be desirable for Mr Peter Williams, Solicitor, to be

re-appointed as the Independent Children’s Lawyer

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11122 of 2010

Mr Tiffany

Applicant

And

Ms Tiffany

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parenting part of these proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child, B, born in 2006 who is currently seven years of age. The proceedings were instituted by the Applicant, Mr Tiffany, whom I shall refer to as “the Father” on 26 November 2010 when he filed an Initiating Application in the then Federal Magistrates Court, which application has subsequently been amended on 17 January 2014.

2. The Respondent to that application is Ms Tiffany, whom I shall refer to as “the Mother” and she filed a response to the Father’s initiating application on 16 February 2011 seeking final parenting orders and she introduced property orders sought. In circumstances where this matter proceeds on the application of the Independent Children’s Lawyer and the Father to proceed on an undefended basis, it is necessary that something about the procedural history of the matter be recorded.

3. Orders as long ago as 3 March 2011 by Slack FM (as his Honour was then) provided, inter alia, for the proceedings to be transferred to this Court; for the child to live with the Mother; spend unsupervised time with the Father each Saturday for a period of two hours with transition for the contact to occur at a contact centre at C Town; and an order was made for the appointment of the Independent Children’s Lawyer and for a family report to be prepared.

4. The Father’s evidence records that whilst both parents registered with the contact centre the Mother subsequently became uncontactable and the Father’s time with the child pursuant to those Orders never occurred.

5. As at 22 June 2011 the Mother was represented in these proceedings but when a Notice of Ceasing to Act was filed by her then solicitors the Mother became self-representing.  However, from the time of the filing of that Notice of Ceasing to Act until the filing of a Notice of Address for Service on 3 May 2013, the Mother did not participate in these proceedings as she had in that intervening period absconded with the child and was unreachable and uncontactable.

6. In her absence a recovery order was issued on 27 November 2012, which was later executed on 1 May 2013 when police located the child and placed him in the Father’s care.

7. The Mother subsequently filed her Notice of Address for Service on 3 May 2013 and various other Court documents on 10 May 2013 including a Response to Application in a Case, an Application in a Case, Form 4 Notice of Child Abuse or Family Violence and supporting affidavit material.

8. The proceedings came before Principal Registrar Filippello for a duty hearing on 8 May 2013.  The Mother was present on that occasion and orders were made inter alia that the child live with the Father; that the Father have sole parental responsibility for the health and education decisions for the child; that the Mother be restrained from removing the child from the Father’s care; and that the child spend supervised time with the Mother for two hours per fortnight at a contact centre with such time to commence after the child had attended a counselling session with Mr D, psychologist; and that the parties and the child attend upon a psychiatrist and a family report writer to enable both a psychiatric report and a family report to be prepared.

9. Principal Registrar Filippello also directed that the Mother file and serve by 5 June 2013 an affidavit setting out where she has lived since the orders of the Court were made by Slack FM (as his Honour was then) earlier referred to;  her current residential address; whether she was renting at that address; a copy of any relevant rental agreement evidencing her tenancy and any arrangements made with Queensland Education in respect of the child’s then alleged home-schooling, and copies of any documentation pertaining to that, together with the details of any medical practitioner that the child attended upon.

10. Following the filing of the Mother’s Application in a Case on 10 May 2013 the matter came before Hogan J for a duty hearing on 17 June 2013.  The Mother appeared on that occasion and orders were made, inter alia, that the Mother file and serve on the Father and the Independent Children’s Lawyer by 24 June 2013 copies of her Application in a Case, affidavit and Form 4 Notice of Child Abuse and Family Violence, all filed 20 May 2013, and that the matter be adjourned to 1 July 2013 for further hearing.

11. The Mother subsequently failed to attend the further hearing on 1 July 2013.  A medical certificate from one Dr E of Suburb F Medical Centre, dated 1 July 2013, was faxed to the Registry of the Court on the morning of that hearing simply stating that the Mother “is receiving medical treatment and for the period 1 July 2013 to 5 July 2013 inclusive.  He [sic] will be unfit to continue his [sic] usual occupation.”

12. Following the release of the psychiatric report of Dr G, which was filed on 12 July 2013 the Independent Children’s Lawyer filed an Application in a Case on 18 September 2013 seeking to suspend certain orders that were made on 8 May 2013 providing for the Mother to have supervised time with the child.  That application was heard by Cleary J on 14 October 2013 and orders were made suspending the Mother’s time with the child and listing the matter for further hearing on 13 December 2013.

13. Her Honour also made orders extending the Mother’s time to comply with the orders made on 8 May 2013 that I have referred to by filing an affidavit in compliance with that order together with an affidavit by any current treating medical practitioner of the Mother within 28 days; noting that in the event the Mother failed to comply the matter may proceed undefended to final hearing.  There are several notations to that order, including a notation which reads:

    The Mother has been given the opportunity to comply with an order made on 8 May 2013 for the filing of an affidavit.  Time has been extended but in the event that she does not file her material the matter could proceed undefended and could be allocated dates for an undefended hearing by the Registrar on 13 December 2013.

14. A further notation reflected on those orders states that:

    That the application of the Independent Children’s Lawyer proceeded undefended in respect of the Mother who was absent from Court with some evidence of being ill.

15. Contained on the Court file and marked as Exhibit 1 at the hearing on that day is a medical certificate by another doctor of Suburb F Medical Centre dated 14 October 2013 which specifies that the Mother, “…can’t attend court issue due to medical reason.  [Ms Tiffany] has had high blood pressure on 14.10.2013 and was in danger of complications if under stress…”.  Notwithstanding these dates, when the matter came before Registrar Stoneham on 13 December 2013 for a directions hearing the Mother was not present.

16. Again, on the morning of that hearing a medical certificate from a doctor of the Suburb F Medical Centre dated 13 December 2013 had been faxed to the Registry of the Court stating that the Mother “is feeling to [sic] unwell to attend court today.”  Registrar Stoneham made orders in the Mother’s absence that by 17 January 2014 the Father file and serve any Amended Initiating Application, together with a reply in respect of the application for property settlement that had been filed on 25 February 2011; that the Mother file and serve any Amended Response by 7 February 2014 and that both parties file and serve their affidavits of evidence in chief by 28 February 2014. Registrar Stoneham also made other orders for each party to file trial material.

17. On 14 March 2014 the matter came before Registrar Stoneham for further directions. That same morning the Mother, in like fashion as earlier described, faxed a medical certificate to the Registry of this Court, again from a doctor at the Suburb F Centre, dated 14 March 2014 which provided that the Mother “is feeling too unwell to attend court today.” Thus the Mother did not appear at the hearing and orders were made in her absence, including an order that the Mother file any documents upon which she seeks to rely at trial by 13 June 2014, and an order was made that the matter be listed for hearing on 11 July 2014 on the basis that it might proceed as an undefended hearing pursuant to rule 11.02, subrule (2) of the Family Law Rules 2004. A notation appears on those orders that a medical certificate from Dr E was provided by facsimile to the Registry shortly prior to the commencement of the directions hearing, and the Mother did not attend. Accordingly, the Court did not telephone her in those circumstances. A copy of that medical certificate is attached to those orders.

18. In the event the Mother failed to comply with the orders of 13 December 2013 and 14 March 2014 in relation to the filing of any trial material.  Further, the Mother failed to comply with the orders of 8 May 2013 and 14 October 2013 in relation to the filing of an affidavit setting out her living arrangements and an affidavit from her treating medical practitioner. 

19. Pursuant to the orders of 14 March 2014 the matter came before me on 24 June 2014 for a pre-trial mention.  Again, on that same morning a medical certificate from a doctor at the Suburb F Medical Centre dated 24 June 2014 was faxed to the Registry of this Court.

20. The certificate stated that the Mother “is feeling to [sic] unwell to attend court on 24/6/14.”  Thus, in the absence of any appearance by the Mother or a representative on her behalf orders were made that the matter remain listed for an undefended hearing at 10.00 am on 11 July 2014; and that the Independent Children’s Lawyer cause to be served upon the Mother at her post office box address, her physical residential address and email address a copy of the orders of 24 June 2014, a copy of the orders of 14 March 2014 and the Independent Children’s Lawyer’s Case Information document, and list of documents to be relied upon.

21. I also requested that the Independent Children’s Lawyer file and serve an affidavit showing evidence of the service on the Mother prior to today’s hearing, although no formal order was made to that effect.  In light of the Mother’s history of non-attendance at Court events for alleged medical reasons with only the provision of, at best, vague medical certificates of and the providence of which might be open to question, I also made an order in the following terms:

    If the Mother seeks to persuade the Court that her non-attendance at Court is due to medical incapacity, she is to file and serve an affidavit by a treating medical practitioner evidencing same and who is available for cross-examination on 11 July 2014.

22. Notwithstanding that order at the beginning of this week, on Monday, 7 July 2014, yet another medical certificate dated 7 July 2014 was faxed to the Registry of this Court.  The medical certificate simply states that the Mother “is receiving medical treatment and for the date 11/7/14 will be unfit for court.” 

23. On 8 July 2014 the Independent Children’s Lawyer filed an affidavit setting out the steps the Independent Children’s Lawyer has taken to contact the Mother and serve the Mother with orders, the Father’s trial material and the Independent Children’s Lawyer’s trial materials dating back to January 2014.

24. I note for the record that the Mother has not responded to any of the Independent Children’s Lawyer’s attempts to contact her.  The most recent attempt made by the Independent Children’s Lawyer to contact the Mother occurred on 30 June 2014 when the Independent Children’s Lawyer sent the Mother correspondence in accordance with the above-mentioned order advising her of the trial date set down today and enclosing copies of recent orders and trial materials.  At paragraph 9 of the Independent Children’s Lawyer’s affidavit, the Independent Children’s Lawyer deposes that following enquiries with Court staff, information was provided that none of the orders or mail sent to the Mother’s post office box address noted on the address for service had been returned to sender. 

25. The rules of procedural fairness and natural justice need to be considered before determining a matter on an undefended basis.  Within the rule of procedural fairness lies the indispensable requirement of the court system of justice that a party potentially affected by a decision of a court have the opportunity to be heard before the decision is made.  As highlighted in Allesch v Maunz (2000) 203 CLR 172:

    Where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

26. However, as was emphasised by the High Court, including by Kirby J:

    It is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before orders are made.  The principle does not require the decision-maker to actually from the party.

27. As Kirby J put it at paragraph 38 of Allesch v Maunz:

    Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

28. As I have referred to, since her legal representatives filed the Notice of Ceasing to Act on 22 June 2011, the Mother has filed a Notice of Address for Service on 3 May 2013 along with various other Court documents, and has intermittently attended Court hearings, either in person or by telephone.  However, the last occasion the Mother filed material in these proceedings was on 10 May 2013 when she filed an Application in a Case seeking an urgent recovery order, a Form 4 Notice of Abuse or Family Violence, and affidavit material.  The Mother subsequently attended a duty hearing concerning those materials on 17 June 2013. 

29. However, the Mother has filed no material, nor attended any hearings, in these proceedings since that time. As noted, since that time, the Mother has continually filed medical certificates, more or less on the day of the hearing, stating that she is not fit to attend the hearing. Throughout this period it was self-evident to the Mother that the Father and the Independent Children’s Lawyer were seeking parenting orders to be made pursuant to Part VII of the Act. I am satisfied on the chronology that the Mother has been ordered on numerous occasions to file trial materials and other evidence supporting her non-attendance at Court events, but she has continuously failed to do so.

30. That failure has occurred in periods outside each of the periods referred to in the respective medical certificates to which I have made reference.  The Mother has not actively participated in these proceedings, it would seem, since her attendance before Hogan J on 17 June 2013. 

1. I am satisfied that the Mother has had the opportunity to be heard and I am satisfied that it is in order to proceed to hear and determine the applications for parenting orders on an undefended basis.  I am so satisfied despite the contents of Dr G’s report, which I will refer to, reporting mental health issues with respect to the Mother.

2. As will be discussed, those mental health issues seem to centre upon a delusional or fixed belief the Mother has concerning paedophilia, but it is not apparent to me on that psychiatric evidence that the Mother is otherwise precluded by reason of her mental health condition from complying with orders of the Court or meeting requirements for the filing of material.

3. Part VII of the Act provides the statutory framework in which the Court exercises its power to make parenting orders. Most of the amendments to Part VII, which took effect on 7 June 2012, do not apply to these proceedings given their institution prior to the operative date of the amendments. Thus the discussion in these reasons of Part VII is in its unamended form.

4. Section 60B of the Act sets out the objects of Part VII as including the need to ensure that the best interests of children are met, and details how those objectives are achieved, and s 60B(2) records the principles which underlie those objects. The objectives of that Part are to ensure that the best interests of the 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.

5. Section 60CC of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act identifies the primary considerations within subsection (2) and the additional considerations within subsection (3) that the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled, or failed to fulfil, responsibilities as a parent in the particular respects identified in subsection (4).

6. Section 65DA of the Act provides the source of the Court’s power to make a parenting order as defined. This section expressly provides that the power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2). Further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. For reasons which follow, I am satisfied that the presumption does not apply in this case in the best interests of the child.

7. The Father is 42 years of age, having been born in 1972.  The Mother is currently 42 years of age, having been born in 1972.  The parties commenced their cohabitation in March 2006, married in 2007, and finally separated in February 2010.  Their divorce was pronounced on 8 July 2011.  I have already noted the child’s date of birth.  He is the only child of that relationship. 

8. The Father has two sons from a previous marriage who reside with him, namely H, aged 15, and J, aged 13. The Father also resides with his new partner, Ms I, and her three children from a previous relationship, namely, K, L and M, who are between 10 and 6 years of age. 

9. As earlier noted, the Father commenced these parenting proceedings as long ago as 2010. I have referred to the Form 4 Notice of Child Abuse filed by the Mother.  Briefly stated, the Mother’s Form 4 included allegations that the Father had been sexually abusing the child; that the Mother had witnessed the Father sexually abusing the child; and that the Father was part of a “paedophile ring”. 

10. I have earlier referred to the history of orders made and, as will be apparent from that history, the Mother absconded with the child for a period of some two years or more, despite orders providing for the child to spend time with his Father.  It is the fact that since 1 May 2013 the child has resided with the Father following his recovery by the police.  It needs to be borne in mind in those circumstances that the report of Dr G was prepared soon after the child had first been in the care of his Father after that extended absence.  I have noted the orders of 8 May 2013 made by Principal Registrar Filippello which included an order for the child to live with the Father; for the Father to have sole parental responsibility for health and education decisions for the child; and facilitation for the parties to participate in a psychiatric assessment process and a family report process.

11. It was on 6 June 2013 that the parties and the child attended interviews with Dr G, psychiatrist, for the purpose of compiling a psychiatric report, which is attached to Dr G’s affidavit filed by the Independent Children’s Lawyer on 12 July 2013.  The Father deposes in his material that he was not able to spend any time with the child from the time of separation until 1 May 2013, a period of some three years and three months, when the child was removed from the Mother’s care pursuant to the recovery order referred to.  Since that time, in accordance with the orders of 8 May 2013, the child has resided with the Father.

12. Those orders intended that the child spend supervised time with the Mother at a contact centre for a period of two hours each fortnight, with such time to commence after the child completed his first counselling session with Dr D, a psychologist.  However, that time has never taken place because the Mother has failed to register with the contact centre.  Following the release of Dr G’s report on 12 July 2013, the Independent Children’s Lawyer filed the Application in a Case on 18 September 2013 earlier referred to, and that application sought the suspension of certain orders made on 8 May 2013.

13. Dr G records at paragraph 130 of his report, under the subheading, “The Nature of the Relationship Between the Mother and the Father and its Effects, if any, Upon Either or Both Persons’ Capacity to Parent the Child”, his opinion as follows:

    The relationship between [Mr and Ms Tiffany] is clearly disrupted beyond any repair.  [Ms Tiffany’s] fixed and intensely emotional belief that [Mr Tiffany] is a paedophile who is actively abusing the child means that she will find it impossible to cooperate with him in any child care arrangement.  It will also be problematic for [Ms Tiffany] to have contact with the child because of the risk that she will share her delusional beliefs with him or interrogate him about his supposed abuse.  If this were to happen it would be confusing, emotionally distressing and possibly traumatic for the child.

14. I accept the opinions of Dr G.  His reports strikes me as having given detailed consideration to the relevant chronology of events in this matter and as having given thoughtful consideration to the data in reaching his medical opinions.  It is clear on the chronology I have earlier referred to that the Mother has actively prevented the child from having a relationship with the Father by depriving the child of any contact with the Father; by not telling the child who his Father was; by subjecting the child later to false information about the father which most likely is the cause of the child describing the Father as “an evil dad” when interviewed by Dr G. 

15. The Father’s evidence establishes that following the 8 May 2013 orders, the Mother made no attempt to avail herself of the supervised time with the child that was provided for and subsequently when orders were made for the Mother’s time to be suspended due to concerns regarding the Mother’s mental health, the Mother has made no attempts to seek treatment for a mental illness which as is noted by Dr G in his report, may allow the Mother to re-engage in her role as a parent without risk of harm to the child. 

16. That occurs in the context I have earlier referred to of the Mother’s repeated choice to ignore Court orders regarding the filing of material in pursuit of any orders she was seeking in these proceedings.  The orders proposed by the Father and by the Independent Children’s Lawyer are for the Father to have sole parental responsibility.  I am satisfied on the evidence and in particular including the evidence of Dr G that an order for the Father to have sole parental responsibility for the child is clearly in his best interests. 

17. Dr G records in his report that whilst the child was in the care of his Mother in the period I have referred to, he would have experienced emotional abuse in that he was subjected to false information about his Father in the form of her beliefs, delusional as assessed by Dr G, about sexual abuse.  I also note the opinion of Dr G that the consequences of the Mother’s delusional disorder are such that equal shared parental responsibility could not feasibly apply in this case given the Mother’s persistent and intense belief that the Father is a paedophile who is abusing the child. 

18. I also note the Father’s evidence as to the impracticability of equal shared parental responsibility in any event in light of the toxic relationship between the Father and the Mother and her history of flagrant disregard for Court orders and the fact that she absconded and was unreachable for a period of about three years.

19. I do not intend to specifically address each of the remaining statutory considerations I have earlier referred to, but make it clear that each of them have been considered in the context of the orders now sought by the Father and the Independent Children’s Lawyer. 

20. On the evidence before me, particularly the evidence of Dr G which I accept, it is clear that the Father has displayed a sensitive and loving attitude towards the child and the Father and the child will be able to form a strong relationship, albeit that the Father may have needed some support during the process given the absence of the child and the Father from each other’s lives for the period referred to.  On the Father’s most recent affidavit evidence it would seem clear that the child and he are in the process of forming a meaningful relationship, that the child has now learned that the Father is indeed his Father and the child is developing bonds with his step-mother Ms I and his siblings living in the Father’s household.

21. It is clear from Dr G’s report that the Mother does not acknowledge her mental illness or the delusional disorder to which I have referred.  It would seem on Dr G’s evidence that the Mother is supported in maintaining this lack of acknowledgement by her twin sister Ms N who attended on the occasion of those interviews. 

22. In the circumstances of this case, relevant to a number of the s 60CC considerations, whilst ever the Mother does not acknowledge her mental illness in the form of the delusional disorder referred to, and whilst ever she fails to seek professional help or treatment for that, it seems to me it could not be concluded that the child would benefit from having a meaningful relationship with the Mother given all the risks inherent as described by Dr G. At paragraph 124 of his report under the subheading, “The Nature of the Relationship Between the Child and Each of the Adults and any Significant Other Person and Each Adult’s Capacity to Provide for the Needs of the Child, Including Emotional and Intellectual Needs” Dr G opines:

    While the child says he loves his mother it is likely that the relationship between the child and [Ms Tiffany] has been significantly distorted by the effects of [Ms Tiffany’s] mental illness.  It is likely that [Ms Tiffany’s] emotional responsiveness towards the child will not be accurately attuned to his needs with a risk of harm to his emotional and intellectual development.

23. There is thus on that evidence, which I accept, evidence of abuse or family violence within the meaning of the Act. Dr G and indeed the Father have both reported that as at the time of the report interviews in June 2013 the child had formed a view that his Father was an “evil dad”. The expert opinion of Dr G is that:

    I believe that [Ms Tiffany] does pose a risk to the child’s emotional and psychological development.  In my opinion, her mental illness and resultant behaviour is likely to render the child vulnerable to emotional and behavioural disturbances in childhood and may also place at risk of alienation from his father and isolation from peers and the wider community.

24. I note that that opinion is expressed in circumstances where the Mother apparently did nothing to enrol the child in normal school at the normal commencement age of his education when the child was with the Mother.  In this case the evidence of the Father is uncontested in relation to the risk to which the child is subject whilst ever in the presence of the Mother.  In the absence of any evidence to the contrary, particularly in light of the Mother’s refusal to comply with Court orders and file affidavit material from her treating medical practitioners, it seems to me that I must draw the inference that she continues to suffer from the delusional disorder assessed and opined upon by Dr G.

25. It follows that contact or time between the child and the Mother would continue to place the child at risk of harm and I find that there is a need to protect the child from this risk as assessed by Dr G.  It is self evident that during the time the child was in the Mother’s care and indeed following his removal from that care, the Mother has displayed a troubling attitude towards the responsibilities of parenthood and of course all of this is sourced to her delusional disorder.  I am satisfied on the evidence before me that the Father has shown a positive and mature attitude to the child and to the responsibilities of parenting.

26. On the opinions of Dr G, which I accept, the evidence referred to relating to the Mother’s mental health issues will persist in presenting a risk to the child unless and until the Mother demonstrates that she has successfully addressed those issues.  The proposed orders by the Independent Children’s Lawyer and the Father do not provide any specifics in terms of time and communication with the Mother beyond the Mother spending time and communicating with the child at such times as are agreed in writing between the Mother and the Father or pursuant to a further order of the Court.

27. In circumstances where these are to be final orders, plainly enough, what is usually referred to as the rule in Rice & Asplund (1979) FLC 90-725 would apply and potentially present a hurdle to the Mother in terms of altering final orders that are now made. Clearly enough if the Mother demonstrates an acknowledgement of the assessment made by Dr G and demonstrates by evidence to a Court that she has addressed her mental health issues and is in a different place, as it were, than it seems she is now concerning her delusional beliefs about the Father, it seems to me that there would be no reason that the Mother would not show a substantial change in circumstances as compared with the circumstances currently, in her seeking a Court to again revisit the parenting arrangements and orders with respect to the child.

28. In this context I make it clear that if the Mother accepts the reality of her mental health issues, takes the positive steps identified by Dr G to address those issues with expert medical assistance, demonstrates her willingness to comply with recommended medical treatment including the taking of medication, it may well be that the Mother can demonstrate a sufficient change in circumstances to justify an application to a Court exercising jurisdiction under Part VII to revisit the final orders now made.

29. Unless and until she does so, I am satisfied that the Father’s exercise of sole parental responsibility in conjunction with the provision for the Mother to spend time as agreed in writing is a sufficient safeguard for the child in terms of the risks referred to, taken also with the other orders provided to be made.

30. I should record that the proposed orders contain a number of injunctions in terms of restraints upon the Mother.  One of those injunctions precludes the Mother from contacting police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency in any way whatsoever in relation to the child.  That, on its face would prevent, it seems to me, the Mother making any notification, for example, to the Department of Child Safety (“the Department”) in terms of any notification of alleged risk of abuse.  Such an injunction is to say the least unusual, in that obviously it is designed that notifications can be made to the Department out of the need to protect children when circumstances arise that may present a risk to their welfare.  However, in this case it is clear that the Mother is driven by the delusional disorder to which I have earlier referred.  The balance clearly lies, given the opinions as expressed by Dr G, in the Mother being so restrained in the interests of the child.

31. For all of these reasons I am satisfied that the orders proposed by the Father and the Independent Children’s Lawyer meet the child’s best interests within the meaning of Part VII of the Act. I record that the father did not oppose the further order sought by the Independent Children’s Lawyer, that is, further to the minutes of orders annexed to the Father’s Case Information document and the orders will include the order discussed as well as the alteration to paragraph 7 of the order discussed at the outset of these submissions. I therefore make the parenting orders in those terms.

32. So far as property matters are concerned, as earlier noted, applications for property orders were introduced by the Mother when she filed the response earlier referred to, now a long time ago.  The chronology of events discussed applies equally with respect to the Mother’s failure to pursue in any meaningful way her property application or the property orders which she seeks.  I am satisfied on the Father’s evidence that his property or asset holding position is extremely modest, and at his age the most significant asset he has of superannuation does not have particular resonance. The property application of the Mother is dismissed.

33. I have referred to the prospects of the Mother bringing a further application in the event that she addresses her mental health issues in the manner and respects to which I have also referred. In the event that the Mother brings a further application under Part VII of the Act it would obviously be desirable for Mr Peter Williams, who has acted as the Independent Children’s Lawyer in these proceedings through their currency to be considered for re-appointment as the Independent Children’s Lawyer in any further application. I will therefore include in the orders a notation to that effect.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 July 2014.

Associate: 

Date:  11 July 2014