TINTO & DAWHURST
[2014] FamCAFC 16
•14 February 2014
FAMILY COURT OF AUSTRALIA
| TINTO & DAWHURST | [2014] FamCAFC 16 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Adequacy of reasons. FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time -Separation of siblings. |
| Family Law Act 1975 (Cth) |
| Gronow & Gronow (1979) 144 CLR 513 |
| APPELLANT: | Ms Tinto |
| RESPONDENT: | Mr Dawhurst |
| INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke |
| FILE NUMBER: | NCC | 1278 | of | 2011 |
| APPEAL NUMBER: | EA | 113 | of | 2013 |
| DATE DELIVERED: | 14 February 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 15 November 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 July 2013 |
| LOWER COURT MNC: | [2013] FamCA 640 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Snelling |
| SOLICITOR FOR THE APPELLANT: | Aston Legal Solicitors and Barristers Pty Ltd |
| RESPONDENT: | In person |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tinto & Dawhurst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 113 of 2013
File Number: NCC 1278 of 2011
| Ms Tinto |
Appellant
and
| Mr Dawhurst |
Respondent
REASONS FOR JUDGMENT
The mother appeals against parenting orders made by Cleary J on 19 July 2013 in relation to the child who was born in 2007. The father resists the appeal and seeks to maintain her Honour’s orders. The Independent Children's Lawyer who appeared at the trial, did not appear on the appeal.
The trial judge ordered that the father have sole parental responsibility for the child and she live with him. Her Honour made orders providing for the child to spend time with the mother and the child’s siblings who remained living with the mother. Her Honour’s orders for the child to spend time with the mother were conditional. She ordered:
5. Commencement of (the child’s) time with the mother pursuant to Orders 4(b) and 4(c) is conditional upon the following:
(a)The mother, having commenced and committed to a course of individual therapy with a Clinical Psychologist to address the issues related to her diagnosis of Borderline Personality Disorder.
(b)The mother providing to the father written confirmation from the Clinical Psychologist of her continuing engagement in the course of individual therapy.
In the event that the mother did not have the therapy or did not continue in therapy her Honour’s orders contemplated a regime for the child to spend reduced time with her.
Background
In order to give some context to the appeal and in particular her Honour’s findings which are challenged in the appeal, we set out some matters by way of background taken from her Honour’s reasons.
The mother and father began to live together in 2000 and finally separated after a number of short separations in either mid 2009 or early 2010.
The mother has four children, only the child the subject of the appeal is the child of the mother and the father. The oldest, aged 16 at the time of the hearing before the trial judge, lives with his father. Although he had spent time with the mother, his relationship with her had broken down and he was not seeing her at the time of the trial. The second oldest aged 13 lives with the mother and formed the household in which the child and her half-sister, then aged two and a half lived.
The matter came before the court with each party seeking an order that the child live with that parent and spend time with the other parent. They sought an order for equal shared parental responsibility. The trial judge had the benefit of reports from a Family Consultant, Ms T and from a Single Expert, Dr B, a psychiatrist.
The trial judge’s reasons
Her Honour observed in her reasons that by the conclusion of the hearing the parties’ positions were changed. Her Honour said:
8. By the conclusion of the hearing the position of the parties was radically different. The father submitted for sole parental responsibility, residence with him and supervised time for the mother. The mother, to her great credit acknowledged that she was not the appropriate residence parent for [the child] and had a need to address the personality disorder identified by the Single Expert. This acknowledgment was made by the mother in the witness box.
In considering the parties’ past relationship, her Honour said:
12. The Family Consultant described the relationship between the parents as destructive and co-dependent. Certainly, bitter accusations were made by each parent against the other, more particularly by the mother against the father. This is consistent with the pattern of their relationship/friendship over 13 years to date, where there were angry scenes and allegedly violent scenes, but an underlying expectation that the relationship would go on. The father appeared to be treated as a family member by the mother at all times.
Her Honour, in considerable detail, outlined the mother’s behaviour towards the father, described by her Honour as “episodes of rage and uncontained behaviour on many occasions over the last three to four years.” [14] Her Honour noted that on occasions the child and other of her siblings were present as were members of the public. Both at this point and later in her reasons, her Honour set out detail of incidents which exemplified her findings.
As we have indicated, her Honour had the benefit of a report from a Single Expert, Dr B.
She said:
90.Dr [B] agreed that the mother met at least seven of the nine criteria in DSMV for Borderline Personality Disorder. He quite fairly and conservatively said that he had been reluctant to simply come to a diagnosis in his report after a one off assessment. However, he agreed that the mother did meet the criteria and needed to be referred to a Clinical Psychologist. The reason for that was her poor emotional regulation, which led to unstable relationships. The Doctor recommended Dialectical Behaviour therapy and/or Cognitive Behaviour therapy for a period of six to eight months.
91. ... He said that individuals in most need of therapy often have the least insight. Accordingly it is not surprising that [the mother], despite her intelligence, has had difficulties with insight. There needed to be a commitment to counselling for 12 to 24 months ongoing, not just the intensive therapy in the first six to eight months.
92. The Doctor stated candidly that one of the greatest difficulties was a commitment and following through for somebody with a Borderline Personality disorder.
93. Doctor [B] defined Borderline Personality as a personality disturbance, ingrained maladaptive characteristics or coping mechanisms, which persist through life. Dr [B] also said that if the children remained in their mother’s care, it is essential that she be engaged by the Brighter Futures program for the children, so that she did not bring too much pressure to bear on them during the time when she was engaged in the work of therapy.
94. The doctor said that the mother did not understand the children’s emotional needs. Instead of knowing institutively how to respond in the way that a person does who has had their own emotional needs met as a child the mother has to learn every step of the way how to do it.
Turning to the evidence of the Family Consultant her Honour said at [62] that in her first interview with the mother, Ms T said of the mother:
… she was hostile and critical to the interview process, she then left the interview prior to it ending and stormed into the child care room where she began shouting and swearing at the father in regard to the questions that had been put to her. She was unable to desist when the reporter asked her to do so. [The child] appeared fearful of the mother’s outbursts and was clinging to the father. The mother was again asked to stop and it was pointed out to her that she was frightening [the child] and [C] and that [C] was crying. The mother was unable to stop. She took hold of [the child] roughly and pushed the stroller towards the door. She then left the centre by pushing past Ms [T] who was attempting to hold the front door open. The mother returned 15 minutes later with both children, no sign of anger and apparently unaware of the impact of her behaviour on the children. When challenged about that impact the mother said, “I was upset and I got myself together. Now I’m not.
Her Honour commented that the Family Consultant on her re-interview of the mother had available to her the report of Dr B. In that interview, the mother expressed interest in taking up the therapy recommended by Dr B although her Honour noted that the mother did not in fact commence any program.
Turning then to the Consultant’s evidence, her Honour observed that Ms T was “not surprised” that the mother had not taken up the recommended therapy.
The trial judge noted at [69] and [70] that the Consultant’s opinion was that if the child lived with the father, the mother’s time with her should be supervised until the mother was engaged in therapy. Her Honour continued:
72.I accept the evidence of Ms [T] in relation to domestic violence. She said that anyone who has used physical violence in a relationship should have counselling to learn tactics for ensuring that that “Nothing like that should ever happen again in front of [the child]”. I take it that the two incidents of pushing and shoving are less significant than the fact that [the child] has been sensitised to violence. In particular she has seen her mother hurt and frightened by [Mr VT]. It is immensely important that [the child] not have her confidence undermined by any further episode of violence, abuse or overbearing conduct. For that reason, there should be an order for the father to engage for what will probably be a relatively short program, of learning skills to avoid resorting to physical resolution of conflict.
73. Ms [T] said the first benefit from the recommended therapy for the mother is that she would begin to learn strategies for recognising when anger was about to take her over and how to avoid that happening. She expressed the view that there was presently significant risk for [the child] in the mother’s care, and that an age appropriate explanation, without blame, should be provided for [the child]. …
Her Honour referred to the mother’s evidence concerning her mental health, noting that the mother said that she believed that “there was no issue” about her mental health. Her Honour noted that the mother said that perhaps she should have followed Dr B’s recommendations. Her Honour however concluded that she could not be satisfied that the mother understood the significance and implications of Dr B’s recommendations. [74]
Her Honour said:
89. Ultimately the mother said that she would engage with the Brighter Futures therapy, whatever the orders were. At one stage the mother said that [the child] should have no contact with her until she had been able to complete that therapy because she had come to understand that she was a risk to [the child]. The mother certainly was showing strong signs of remorse that her love for her children had not been as protective as she believed, and that was now in a situation that she would lost the majority of care for [the child], as she had with [the child O] at the same age. However given the newness of this perspective and the possibility that it will slip away again, it would be inappropriate to make orders based on a hopefulness that the mother’s new insight would be sufficient to address the complex difficulties of her life.
Her Honour turned to the consideration of s 60CC(2) of the Family Law Act 1975 (Cth) and in the course of that discussion found that the child had been exposed to family violence and that the mother’s angry and abusive behaviour had been abusive of the child.
After finding that the child had a “loving and trusting relationship” with her father, the trial judge considered that she also had a loving relationship with her mother but noted that the child “is sometimes scared of her when she becomes angry”. [107]
In considering the proposed change in circumstances for the child, the trial judge observed that it will be difficult for the child to have limited restricted and supervised time with her mother but found that she will benefit from living with her father in a more stable and predictable household. [113]
The appeal
The Notice of Appeal filed on 15 August 2013 contains 15 grounds of appeal. Not all of those grounds were pressed and in the result only nine grounds were agitated. The submissions addressed the grounds in groups as shall we.
Ground 2. That the trial judge erred in failing to assess the parties’ respective proposals, and the impact of her orders which significantly reduced the time that the child spend with her mother, or to give adequate reasons for so doing.
Ground 4. That the trial judge erred in failing to adequately consider section 60CC(3)(d) of the Family Law Act 1975 as to a change of residence of the child with no or limited contact with the mother who had been her resident parent for 5 ½ years.
It was submitted that the trial judge gave insufficient weight to the effect on the child of being removed from her mother and siblings with whom she had always lived and it was argued that it was a drastic step to take especially in circumstances where the father had not spent considerable time with the child before the orders were made.
It was further argued that her Honour gave insufficient reasons to support her decision that the child live with her father. During the course of oral argument on this ground, counsel for the mother refined it to be a challenge not to the adequacy of her Honour’s reasons but that her Honour had attributed insufficient weight to the effect of the move on the child.
In her second report, Ms T said:
86. The impact of the father’s proposal on [the child] will be that she will be less exposed to the mother’s anger outbursts, will not be exposed to the mother’s ex-husband … and any risks he may pose to her and unless the father perpetrated family violence she will be safe from being exposed to family violence. [The child] will no doubt miss the mother and her half siblings as she has lived with them all her life. If the mother commits to individual therapy and engages with Brighter Futures for support with her parenting [the child] may benefit from the mother’s calmer less abusive parenting when she spends time with her.
Her Honour found that the child had a meaningful relationship with both of her parents, finding however that she had been exposed to family violence in her mother’s home from the mother’s partner and before him, in her relationship with Mr N, there was “high conflict”.
At [103] her Honour considered the child’s relationships within her mother’s household and found that she “enjoys relationships with her mother, her brothers and her little sister.” Her Honour found that the child had a loving relationship with her mother and she further found that the child enjoys a relationship with her brother and little sister and to a lesser extent her oldest brother whom she does not see as often. [107]
Her Honour said:
112.[The child] has always lived with her mother. She has spent regular time with her father and also her paternal grandmother. There will be a significant effect on her living with her father and Ms [Y]. She will miss her mother. There is likely to be a change of school, either later this year or next year. She will miss part of being a family with siblings.
113.It will be difficult for [the child] to have limited restricted supervised time with her mother and she may well become more needy and sad in those circumstances. She will enjoy and benefit from living with her father in a more stable and predictable household.
It is important too that the passages to which we have referred are read in the context of her Honour’s reasons as a whole which more expansively dealt with the mother’s dysfunctional behaviour and the father’s relative stability.
As we have indicated, the thrust of this ground as it evolved in the oral argument was a challenge to the weight or importance that her Honour put on the effect of such a change on the child.
As the weight attributed to evidence very much relies on the trial judge seeing and hearing the parties, which the appeal court cannot do, it means that appeal courts are slow to overturn decisions based on the weight given to evidence. See Gronow & Gronow (1979) 144 CLR 513.
No appealable error was found and thus this challenge is not made out.
Ground 3. That the trial judge erred in failing to give appropriate weight to the mother’s evidence about the father’s past behaviour, and in particular incidents of domestic violence conceded by the father against the mother.
Under the heading “Allegations of Violence” her Honour said:
17. The father conceded that he had pushed and shoved the mother during the course of their relationship, he said twice. He denied an allegation made by the mother of punching her and pushing her down the stairs. There was no evidence of injury or police action in respect of the more serious allegations and I am left with each party’s version. The father resolutely denied punching or hurting the mother. He admitted grabbing her hair and pushing her face into the mattress of their bed. He conceded an argument in the stairwell of the property where they lived in 2005, and denied pushing her in the back with his hand so that she fell. I am easily able to accept that there were arguments and fights where both parties lost control and became reckless. However, in the face of the father’s willingness to make some concessions and the absence of any other evidence, such as police or medical reports, I cannot find that the father caused injury to the mother, nor that she was in fear for her own safety.
18. I accept that there was a threat made by the mother to the father as follows: “I am going to kill you. I’ll drop the kids off first then stab you.” The father was asked about the threat and as to whether he sought an Apprehended Violence Order (AVO) for his protection. He said he had spoken to the police about it who advised him that it would be difficult to get the order. He made this comment: “I’m not fearful that she would hurt me without a weapon, but I don’t know what she is capable of.” This is further evidence of the father being at a loss to deal with the mother’s behaviour, “she hates me one minute, next minute I am her best friend.”
Counsel for the mother argued that her Honour’s reference to the father’s violence towards the mother at [17] does not give sufficient weight to the father’s admissions of violence towards the mother and how, in light of that evidence, her Honour found it in the child’s best interests that she be moved from living with her mother to living with her father. It was argued that her Honour failed to make a proper assessment of the risk to the child in her father’s house from family violence committed by him.
The paragraphs to which we have just referred have to be read in the light of her Honour’s findings about the mother’s conduct and the violence within her own household which are found at paragraphs [50] to [61] in particular and which are also referred to in other parts of her Honour’s reasons.
Her Honour did have sufficient regard to the father’s admissions about family violence. Her Honour made orders that required the father to attend counselling to deal with issues of family violence which, it seems to us, squarely recognises his admitted conduct and addresses any concerns for the child living with the father. Her Honour was not bound to make a positive finding of the risk of the father committing family violence, if such a finding was not already implicit in her Honour’s order that he attend for counselling against that very eventuality. In any event, her Honour was required to balance all of the evidence in arriving at the conclusion of what orders provided for the child’s best interests. In this case it is clear that her Honour found that any risk of the father perpetrating family violence was outweighed by the risks to the child in the mother’s household. This finding is, in our view, consistent with her Honour’s unchallenged findings.
It was argued that her Honour provided no reasons for accepting the father’s denials of the bulk of the mother’s allegations of family violence against her. We do not agree. At [17] her Honour observes that there was no corroboration of the violence alleged by the mother against the father and secondly, her Honour refers to the father’s willingness to make concessions about his own violence, both matters her Honour clearly took into account in assessing the credibility of his denials.
This ground has not been made out.
In order to give context to other grounds of appeal, it is convenient to next consider grounds 9 and 13 which concern the mother’s mental health.
Ground 9
. That the trial judge erred in finding that the mother suffers from borderline personality disorder, contrary to the evidence of
the court expert Dr [B].
Ground 13. That the trial judge erred in failing to understand or to give reasons or adequate reasons explaining her understanding of the mother’s medical condition, which affected the ultimate conclusion that it was in the child’s best interests that she live with the father.
In her first report, after setting out the mother’s conduct during the first interview session with her, Ms T said:
73. The mother’s tragic childhood, the father’s allegations regarding her mood swings and rage outbursts, her behaviour on the day of interviews and the assessed poor attachment to the half sibling, [C] is highly suggestive that the mother may suffer a personality disorder. If this is the case it is imperative that the mother accesses therapeutic support to assist her to parent in an appropriate, predictable and attuned manner. Significant psychological damage to children can occur if they are parented by a person with an untreated personality disorder.
Ms T recommended the mother attend a psychiatrist or psychologist for assessment and treatment.
Dr B was engaged to conduct a medico-legal assessment of the mother. In considering the mother’s mental health, he said:
AXIS I there doesn’t appear to be any clear primary psychiatric diagnosis.
AXIS II perspective I believe there’s features of personality disturbance although I am unsure as to whether it should be regarded as personality disorder. There are features of borderline personality structure. Her emotional liability (sic), indiscriminate relationships and attachment difficulties probably stem back to her early disrupted relationships. Her disconnected affect about the chaotic nature of how she changed between partners and there being a lack of clarity as to the paternity of her children. …
Dr B was taken to the features necessary for a diagnosis of borderline personality disorder and agreed that of the nine criteria, the mother met seven. He then said:
Look, if I were pushed, on balance I would say, you know, that there are enough edges to suggest that she does have borderline personality disorder but I guess I’m sort of in two minds, you know. Normally psychiatrists are a little cautious in making personality diagnosis on a one-off interview, but I can understand that it may have important implications in terms of trying to get a clear view of what her future abilities are likely to be.
(transcript 28/6/13 page 76 line 8)
In the course of discussing therapeutic intervention and its likely success,
Dr B referred to the mother as having a “personality disturbance”. He was asked what he meant by that term and said:
What it means is where there are engrained, maladaptive characteristics of a person that are repeated through life and tend not to change. So these maladaptive coping mechanisms keep being repeated in different parts of a person’s life and there doesn’t appear to be learning from those adverse maladaptive behaviours, and that they’re entrenched in the person’s coping strategies.
(transcript 28/6/13 page 78 line 30)
Her Honour’s reasons deal with the evidence of Dr B at [90] to [94]. Her Honour at [90] clearly expressed the effect of his evidence and she observed that the doctor was “reluctant” to come to the diagnosis after one assessment. She continued and noted “However, he agreed that the mother did meet the criteria and needed to be referred to a Clinical Psychologist”.
It was not suggested that her Honour misquoted or misrepresented Dr B’s evidence in those paragraphs. We accept that Dr B’s evidence fell short of making a definitive diagnosis of borderline personality disorder.
However, it was argued that in framing her orders, her Honour appeared to have come to the conclusion that the mother had been diagnosed as having a borderline personality disorder. It was said that this finding is evident in the terms of order 5 made by her Honour which provides for the child’s time with the mother to commence after the mother has “commenced and committed to a course of individual therapy with a Clinical Psychologist to address the issues related to her diagnosis of Borderline Personality Disorder.” It was also submitted that, in her reasons for judgment, her Honour referred to the mother as having a borderline personality disorder when discussing the mother’s willingness to engage in therapy.
It is important to note that the grounds of appeal do not challenge her Honour’s findings of fact nor was it argued that the evidence of Dr B that the mother met seven of the nine criteria for diagnosis was unreliable.
Significantly it was not argued that the trial judge’s account of the mother’s conduct over the years, described in her Honour’s reasons [50] to [61] and in relation to her assessment of the evidence of the paternal grandmother was incorrect in any measure. As to the paternal grandmother’s evidence, her Honour said:
43. [The paternal grandmother] expressed the view that the mother seemed to be triggered into an extreme over-reaction by the slightest irritations, would dwell on the problem and then explode with violent physical and verbal abuse. After these scenes she would often just switch back, as if nothing had ever happened.
44. This is entirely consistent with the evidence given by the other parties and the police records of the mother’s conduct. …
It was said that the trial judge, having erroneously concluded that the mother had a personality disorder, allowed that finding to impact on her other findings and in considering the matters necessary to a determination of the child’s best interests viewed them through the prism of a diagnosis of borderline personality disorder.
It was argued that the misinterpretation of Dr B’s evidence was carried through into the oral evidence of the family consultant and “swung the pendulum” to the child being removed from her mother’s care.
It was submitted that in neither the first report of Ms T nor that of
Dr B was it suggested that the child should not live with the mother while she underwent the recommended therapy. It was argued that it was in
Ms T’s second report that she advocated for a change in residence for the child in the event that the court was persuaded that the mother had the asserted mental health issues. This submission inaccurately expresses the evidence.
In her first report, Ms T said:
84. If the mother is diagnosed with suffering a Personality Disorder or other significant mental health disorder which results in her psychologically abusing [the child], it is recommended that the mother access treatment as recommended.
85. If the court finds the father does not perpetrate family violence and that his partner poses no risk to [the child], it is recommended that [the child] live with the father.
(report of 23 January 2012)
Ms T’s second report refers to Dr B’s report, accurately identifying his opinion and Ms T indicated that the mother will need to engage with and commit to therapy to address the issues identified by him (report paragraph [83]) She then evaluated the competing proposals of the mother and father and the impact of those proposals on the child.
Turning then to Ms T’s oral evidence and the argument that in her oral evidence Ms T came to the conclusion that the child should not live with her mother based on the misapprehension that the mother had been diagnosed as having a personality disorder. We reject this argument.
First, a reading of the transcript of Ms T’s evidence does not support the submission that she accepted that the mother had a borderline personality disorder. She was taken to Dr B’s opinion that the mother met seven of nine criteria for the diagnosis of a personality disorder and his reluctance to make a diagnosis. She was then asked questions about his recommended therapy for the mother. (transcript 4/7/13 page 185 line 45 to 186 line 5).
It is true that in the midst of her questioning the examiner used the term “borderline personality disorder”, (transcript 4/7/13 page 187 line 21) however a reading of that examination and Ms T’s evidence as a whole makes it abundantly clear that she was well aware of the ambit of Dr B’s opinion of the mother’s mental health.
When asked whether, if the mother chose not to have therapy or continue with therapy would she consider the child living with the mother, Ms T said:
… If the mother was in therapy, six months into therapy, eight months into therapy. If we had something from that therapist talking about her commitment and how she has done, etcetera. But at this stage with the mother only very recently saying, “Yes I think I do have a problem. I need to do something about it”, it’s too early in the piece to say how that would go, and as it stands the mother’s behaviour is significantly psychologically damaging to [the child] when she loses her temper, when she chooses inappropriate partners, exposes the children to people like [Mr VT]. That’s what I’ve got at the moment to recommend to the court.
(transcript 4/7/13 page 207 line 10)
It does not appear that Ms T’s opinion about the child living with the father was dependent on whether or not the mother was diagnosed with a particular disorder. The whole of her evidence (and also apparent in her reports) reflect that her concern is about the mother’s conduct both to and in front of the child and its damaging impact on the child’s psychological well-being.
We were not taken to any part of the transcript or evidence of Ms T that supports the submission that the “pendulum swung” against the child living with the mother because of a misapprehension as to Dr B’s evidence.
Further it was submitted that the length of the recommended therapy was different if the mother was not diagnosed with a borderline personality disorder.
As to the mother’s prognosis Dr B said:
With regard to her ability to support herself and maintain a stable mental health I believe that she has a reasonable prognosis. The prognosis with regard to her ability to care for the children will depend on her ability to utilise and set up appropriate community supports, personal supports, use professional counselling and not getting involved in unstable relationships. ...
After receipt of Dr B’s report, Ms T discussed Dr B’s findings with the mother and the mother agreed that she would seek a referral from her general practitioner to a clinical psychologist to deal with her anger control and other issues and would engage with Brighter Futures for support. The report recorded the mother’s agreement to attending on the clinical psychologist for “at least a twelve month period”.
Dr B was asked about the nature of the therapy he recommended for the mother and he said that there were various groups and individual therapies which could assist the mother. He said that dialectical behaviour therapy courses cover about six to eighteen months and continued:
… And once the dialectical behaviour therapy has had a chance to be absorbed, then the individual may then be more open to cognitive behaviour therapy. So one is, like, emotional regulation, and the other is more focussed on improving coping. …
(transcript 28/6/13 page 72 line 30)
Dr B agreed that even though he said that the mother only displayed features of personality disturbance, he was of the view that she should engage in therapy.
He later said:
I think – can I just make a comment about counselling for people who have personality disturbance of this nature, then there does need to be a commitment to a process over a significant period of time, at least 12 months but ideally 24 months, and that it’s the commitment and the attachment to the therapy that appears to be most beneficial.
(transcript 28/6/13 page 77 line 11)
We are were not taken to any evidence before her Honour that lends support to the submission that different regimes of therapy were applicable to someone with a definitive diagnosis of borderline personality disorder and someone who satisfies seven of the nine diagnostic criteria for borderline personality disorder.
As to the likely success of any such therapy, her Honour said:
122. The indications from the psychiatrist and the family consultant who gave evidence in these proceedings, is that there is a very low level of commitment by those who suffer from Borderline Personality disorder to the therapy which is required to ameliorate that condition. However the optimistic and positive evidence is that for those who do commit, there can be a complete change, so that they no longer meet any of the criteria for the disorder. In short it can be “cured”.
123. In the event that the mother chooses not to take up the recommendations for therapy or fails to maintain commitment to therapy, the orders are designed to allow for ongoing, but limited supervised contact between [the child] and her mother. Hopefully she will take action. If she does, the orders allow for a graduation into unsupervised weekend time, which no doubt [the child] will greatly look forward to and enjoy.
Her Honour had earlier referred to Ms T’s evidence that, while the mother had expressed an interest in taking up the recommended therapy, she had not done so, preferring to wait for it to be ordered by the court and found that the mother did not accept that she had the identified problems. [67] Her Honour further referred to the mother’s evidence that, in the past, she had been referred for counselling but had not continued with it. She concluded:
76.... It may be that the mother has such moments of insight, which are forgotten or subsequently rejected by her.
It was not suggested that any of her Honour’s findings about the mother’s past conduct in relation to committing to therapy were incorrect.
While her Honour did refer to the mother having a Borderline Personality Disorder, her findings and the orders made by her reflect not a glib acceptance of the traits associated with the disorder but a careful analysis of the mother’s conduct over the years in relation to the child and to other people in her life. It is clear that her Honour’s findings were based on the evidence before her and the determination that the child should live with the father was one entirely open to her whether or not the mother’s conduct was referrable to a defined disorder or otherwise.
We do not accept the purported analysis of her reasons and find no force in these grounds of appeal.
We now turn to grounds 5, 6 and 12 which concern her Honour’s finding that the child was at risk in the mother’s household. We will consider them together.
Ground 5. That the trial judge erred in finding that there was a risk of abuse or unacceptable risk of abuse to the child in residing with the mother.
Ground 6. That the Trial Judge erred in giving undue weight to any such risk of abuse or unacceptable risk of abuse to the child in residing with the mother, when such risk can or could be minimised by orders being made concerning the mother’s behaviour, such as the orders made by the Trial Judge as conditions for the child to spend any time with the mother.
Ground 12. That the trial judge erred in failing to have regard or any proper regard to the mother’s concessions in evidence, and the progressive steps taken by her and/or to be taken by her to protect the child from any risk of abuse as found by the trial judge.
Seminal to the arguments advanced under these grounds is an asserted misinterpretation of the mother’s evidence.
The mother was asked questions by her Honour about her proposals should the child live with the father.
HER HONOUR: … I want you to have the opportunity to tell me what you think would work if [the child] is living with her father?---I think that it should be contact in a safe environment for both myself and [the child], without the father, and obviously she’s going to need regular contact, or she’s going to experience the same problems that I had.
(transcript 4/7/13 page 169 line 34)
The mother then indicated, in response to her Honour’s questions what she would propose in relation to her contact with the child.
Her Honour, putting to the mother her proposals for contact between the father and the child if the child lived with her, said:
HER HONOUR: ... Is that your position in reverse if [the child] lives with her father, or is it something different?---No, I think if that was the case, I would rather it, for the interim, to be in a safe environment for [the child] and myself.
(transcript 4/7/13 page 171 line 41)
The mother continued and indicated that she would like other people to be present when she saw the child.
Her Honour then asked:
HER HONOUR: And is that what your considered view was, that you wouldn’t want to just have [the child] come to your house in the ordinary way?---I don’t think that – given the circumstances, that that would be a safe option.
For her to be in your house?---For either of us.
I’m failing to understand. If [the child] lives with her father and you continue to live in your household, are you saying that you don’t want an order that [the child] spends time with you in your house?---In the interim, no.
What does “in the interim” mean?---For a period of time until I’m – obviously, if there’s a problem, until that’s rectified.
You mean the problem with your own mental health?---Yes.
(transcript 4/7/13 page 172 line 3 to line 16)
After a short break, her Honour continued her questioning:
HER HONOUR: Now, I was asking you about what your proposal would be in the event that [the child] is living with her father, and you said you thought in the interim it would be better if she didn’t come to your house?---Yes.
And you said the interim referred to a period of treatment of the kind that’s recommended by Dr [B]. Are you conscious that he recommended a period of treatment for 18 Months to two years?---Yes.
And you still think it would be better for [the child] not to come to your house for the whole of that period?---Yes.
Could you tell me why?---Because if I’m not well enough to take [sic] of her, she shouldn’t be near me. I could affect her and my other children.
If I made orders that – assuming for a minute that she was living with her father and I made orders that she did spend time with you in your house, would you take up that time?---I would prefer it, as I said, if it was an environment – a safe environment for [the child].
(transcript 4/7/13 page 174 line 12 to line 24)
After the mother indicated that she would not want telephone contact with the child her Honour asked:
HER HONOUR: What about holiday time?---Not in that treatment period, no.
If I assume that you are really concerned that you don’t want to – if you have done damage you don’t want to do any more, and that you want to go through this treatment, is that correct?---That’s correct.
Is it not pretty hard on [the child] to lose contact with her brothers and sister?---I would like to have the arrangement set that I would see all the children together.
In a contact centre?---Yes
Of course, you will have [the other children]?---No, that’s not my intention if this is what I need to do.
(transcript 4/7/13 page 174 line 47 to page 175 line 12)
Her Honour expressed some concern about the mother’s evidence and granted a short adjournment to enable the mother’s counsel to speak to her
In the course of discussion with counsel, her Honour said:
HER HONOUR: Well, look, Ms O’Rourke, I – there’s two things. It seems to me that if Dr [B] had intended that the therapy would be in the absence of this child and the other children, it would have been explicit in his report. It seems unlikely to me that the doctor contemplated that the mother would have to go through a period of therapy and her children would be elsewhere until she was in that sense cured. I’m sure he would have made that explicit, and that is something that I wanted to confirm with him. That’s one thing.
…
The other thing is the mother’s current state, and Mr Murray, I think, does need the opportunity to find out where her thinking is at the moment. Do you have anything to say against that happening?
(transcript 4/7/13 page 176 line 45 to page 177 line 10)
Her Honour expressed the view that perhaps the mother “is presently judging herself very harshly”. (transcript page 178 line 13)
The mother was later recalled. She was asked by her counsel:
Now, there seemed to be some confusion with that, so perhaps I could ask you now to address this question first. If the child remains living with you, what are you intentions in terms of – and I refer to the questions about
Dr [B’s] evidence as well and I combine them into this question if I can – what are your intentions or actions that you will take? ---To take the appropriate course of therapy.
(transcript 4/7/13 page 179 line 33 to line 40)
The mother’s counsel returned to the issue of whether she would see the child if she was living with the father.
All right. Now, linking that back again to what her Honour, the learned judge, asked you about time being spend with the children, with [the child], if the child remains in your care, do you intend doing anything about
Dr [B’s] diagnosis?---Undertake the therapy and implement the Brighter Futures program.
If the child goes to live with the father, what is your intention then regarding Dr [B’s] assessment?---That I would have – I would like to have - I would like to see [the child], but I want to know that it’s a safe ---
All right. But going to Dr [B’s] treatment, if the child goes to live with the father, would you have the treatment?---Yes, regardless.
(transcript 4/7/13 page 181 line 32 to line 43)
The mother continued in her evidence and said that she would like to see the child if she was living with the father.
In her reasons, her Honour referred to this evidence.
8. By the conclusion of the hearing the position of the parties was radically different. The father submitted for sole parental responsibility, residence with him and supervised time for the mother. The mother, to her great credit, acknowledged that she was not the appropriate residence parent for [the child] and had a need to address the personality disorder identified by the Single Expert. This acknowledgement was made by the mother in the witness box.
9. Submissions were made that it would be possible for [the child] to continue living with the mother, provided she was not brought into contact with [Mr VT]. However, the mother did accept that the child had been put at risk by her own conduct, although she never intended that consequence.
Her Honour referred to this again:
89. Ultimately the mother said that she would engage with the Brighter Futures therapy, whatever the orders were. At one stage the mother said that [the child] should have no contact with her until she had been able to complete that therapy because she had come to understand that she was a risk to [the child]. The mother certainly was showing strong signs of remorse that her love for her children had not been as protective as she believed, and that was now in a situation that she would lose the majority of care for [the child], as she had with Thomas at the same age. However given the newness of this perspective and the possibility that it will slip away again, it would be quite inappropriate to make orders based on a hopefulness that the mother’s new insight would be sufficient to address the complex difficulties of her life.
It was argued that her Honour had taken the mother’s evidence as being an admission that she was not a suitable parent to have the child living with her and substituted that admission for a proper analysis of the evidence as to whether there was a risk to the child in the mother’s household.
As to the existence of any risk to the child in the mother’s household, counsel for the mother placed significant reliance on the evidence of the Single Expert, Dr B in this regard. In his report, as part of considering the mother’s capacity to provide for the child’s needs, he said:
I believe that [the mother] has some strengths such as her ability to support herself and the children and her ability to work. I believe that she is able to cater for the needs of [the child’s] physical and intellectual needs. The major concern is whether she is able to respond (sic) the child’s emotional needs due to the fact that she has suffered enormous emotional neglect and adversity herself.
It was not clear to me that she was incapable. I believe that she does care about the child. I don’t believe that she is an unacceptable risk to the child. The major concerns may arise as the child approaches her adolescent years and needs more sophisticated emotional support. She is likely to struggle with her ability to provide guidance for [the child] as a teenager. I was not able to form a clear view about how well she would support a relationship with the father.
…
[The mother] has suffered a great deal of adversity herself as a child. However I am not aware of the mother allowing the children to be harmed or exposing them to harm. She appears to care about the children. The major difficulties relate to her unstable relationships and the impact of this instability on the children. However she reports that the current relationship so going well. [sic]
However, Dr B’s opinion was not, it seems without controversy. Although not referred to in oral argument in the appeal, it is relevant to consider the second report of Ms T where she said, apropos this opinion:
81. It is clear that the mother has not protected her children from being exposed to violence which has caused DOFACS significant concern historically. It is curious given the Police and DOFACS records that note the mother having rages with [the child] and or the other children present and that there has been historic concern for DOFACS that the mother has failed to protect the children from witnessing violence in more than one relationship that Dr [B] opines that he is “not aware of the mother allowing the children to be harmed or exposed to harm”.
Her Honour’s careful account of the evidence about the mother, her household and past events culminate in her conclusion at:
99. [The child] does have a meaningful relationship with both of her parents. However she has been exposed to family violence, most recently in the relationship between her mother and [Mr VT], although there may have been at least high conflict between her mother and Mr [N], who was the mother’s partner until about October 2012.
100. The mother’s lack of emotional regulation and angry aggressive conduct has represented abuse for [the child], which could lead to psychological harm.
That conclusion that the child was at risk if she remained in the mother’s household was one well open to her on the evidence. The mother’s concessions in the evidence to which we have referred do not appear to be conclusive of her Honour’s findings but was merely a part of the evidence on which her Honour was entitled to come to that conclusion.
It was argued that, in the light of the mother’s agreement to accept the recommended therapy and to work with Brighter Futures, her Honour could have made orders that permitted the child to remain living with the mother while she underwent therapy. Again, the basis for this submission can be found in the opinion of Dr B.
In his oral evidence, when discussing his view that the mother required intensive therapy, Dr B was asked what would happen with the child while the mother undertook the therapy and he said:
Well, at the same time the mother needs some assistance with – is it’s a double pronged approach, I guess. You know, she needs some assistance in managing the children, so that’s the idea of the Brighter Futures, and then to undergo her own therapy she needs to be able to manage that and not impact that – the stress of that on the children. So it is a balancing act and it is challenging. So she would need some outside help such as through something like the Brighter futures to be able to give her guidance about the children and make sure that they are being adequately supported emotionally as well as physically and – whilst she’s undergoing her own treatment.
(transcript 28/6/13 page 84 line 28)
It was submitted that the effect of this evidence was to indicate that there was no risk to the child if she remained living with the mother and while the mother was undergoing therapy.
However, Ms T’s said in her second report:
85. It is clear that [the child] has been exposed to family violence and the mother’s rage outbursts and this will have caused some degree of trauma to her developing brain. In order for this trauma to be resolved [the child] needs to live in a stable reparative environment without any further exposure to trauma.
There was considerable evidence before her Honour about the commitment necessary to undertake the recommended therapy and we have already referred to her Honour’s findings in that regard. Ms T discussed the mother’s past attempts at counselling in the context of considering the likelihood of her making the necessary commitment to therapy as recommended by Dr B and said that it was difficult to predict whether the mother would be able to commit to the therapy. (transcript 4/7/13 page 188 line 3) It seems that it was by no means certain that, despite her evidence, the mother could make that commitment and continue with it.
Not only were her Honour’s conclusions open to her on the evidence, but it may also well be thought that her conclusions were compelled by that evidence. No appealable error has been demonstrated.
Finally, it was argued that the trial judge failed to give sufficient reasons for her decision.
Ground 15. That the trial judge erred in that the reasons for judgment are inadequate and insufficient with respect to each of the factors described in section 60CC of the Family Law Act 1975 so as to justify the orders.
No oral argument was advanced in support of this ground, however the written summary of argument contends that her Honour’s reasons are insufficiently transparent to demonstrate why, in circumstances where the child had always lived with her mother and had spent time with but not lived with her father, her Honour determined that she should live with her father.
We reject this argument. Whilst her Honour’s treatment of the issue of family violence in paragraphs 17 and 18 of her reasons is succinct, it is also cogently expressed. On the whole, her Honour’s reasons are detailed and compelling of the conclusions reached by her.
This ground of appeal is not made out.
The appeal will thus fail.
Costs
At the conclusion of the hearing of the appeal we sought submissions as to the costs on the appeal to save the parties the time and expense of making submissions after the appeal was decided. The father who appeared for himself on the appeal had incurred no costs and sought no order for costs in the event that the appeal failed. We will thus make no order for costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Watts JJ) delivered on 14 February 2014.
Associate:
Date: 14 February 2014
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