Tyler & Tyler
[2022] FedCFamC2F 524
Federal Circuit and Family Court of Australia
(DIVISION 2)
Tyler & Tyler [2022] FedCFamC2F 524
File number(s): AYC 234 of 2015 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – application for parenting orders – consideration of parental responsibility – spend time arrangements with father – whether time should be supervised – whether time should be conditional upon engagement with mental health providers – consideration of potential risk to child – risk of emotional harm – where the father is diagnosed with schizophrenia – need for meaningful relationship with both parents – final parenting orders made – liberty to apply to vary orders. Legislation: Family Law Act 1975 (Cth), ss 60CC, 61DA Cases cited: Mazorski v Albright (2007) 37 Fam LR 518 Division: Division 2 Family Law Number of paragraphs: 144 Date of last submission/s: 27 October 2021 Date of hearing: 25, 26 & 27 October 2021 Place: Melbourne Counsel for the Applicant: Mr Fantin Solicitors for the Applicant: SCB Legal Counsel for the Respondent: Mr Haddock Solicitors for the Respondent: KPW Lawyers Counsel for the Independent Children’s Lawyer: Mr Gardiner Solicitors for the Independent Children’s Lawyer: Joliman Lawyers ORDERS
AYC 234 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TYLER
ApplicantAND: MR TYLER
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
28 April 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Subject to orders 8 to 10 inclusive, the mother have sole parental responsibility for the child X born in 2010 (‘X’).
3.X live with the mother.
4.X spend time with the father as follows:
(a)each Sunday from 10:30am to 6:00pm;
(b)on X’s birthday, if not already in the care of the father, from 4:00pm to 6:00pm if a school day and from 1:00pm to 6:00pm if a non-school day;
(c)for Christmas, notwithstanding any other order, from 1:00pm to 6:00pm on Christmas Day each year;
(d)on the father’s birthday, if not already in the care of the father, from 4:00pm to 6:00pm if a school day and from 10:30am to 6:00pm if a non-school day;
(e)on Good Friday, from 1:00pm to 6:00pm each year; and
(f)at such further and other times as may be agreed to between the father and the mother from time to time in writing (including via text message).
5.The father’s time with X pursuant to order 4 shall be conditional upon the following:
(a)the time being supervised by the paternal grandmother; and
(b)the paternal grandmother executing and filing an undertaking in the terms of Annexure A.
6.The father communicate with X by telephone or electronic means each Tuesday and Thursday from 6:00pm to 6:30pm, with the father to telephone the mother’s mobile telephone or device and the mother to facilitate the communication.
7.Changeover for the purpose of the father’s time with X shall take place as follows:
(a)at the paternal grandmother’s home at the commencement of the father’s time;
(b)at the mother’s home at the conclusion of the father’s time;
(c)the father be and is hereby restrained by injunction from entering the mother’s home or leaving his motor vehicle at changeover at the mother’s home; and
(d)the father be and is hereby restrained by injunction from coming within 5 meters of the mother at changeovers at the paternal grandmother’s home.
8.The parents each keep the other informed at all times of any significant medical injury or illness affecting X when in the care of each of them, including providing the other parent with details of any doctor or hospital that X may attend upon along with details of any treatment administered.
9.The parents each keep the other informed at all times of their current residential address, email address and contact telephone number, and notify the other within 48 hours of any change to same.
10.The parents each be permitted by these orders to receive or access from X’s school information and documents in relation to X (including, but not limited to, reports, letters, photographs and the like). The costs, if any, of such information shall be paid by the parent requesting the information.
11.Each parent be and is hereby restrained by injunction from:
(a)insulting, belittling, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X;
(b)discussing X’s living or spend time arrangements (save and except to inform him of his movements) with X or in his presence or hearing;
(c)showing X any documents associated with these proceedings; and
(d)permitting any other person to do anything prohibited under this order.
12.The Independent Children’s Lawyer have leave to and shall provide within 7 days a copy of these orders to X’s school and treating medical practitioners.
13.The father be at liberty to bring an application to vary these orders to seek unsupervised and/or additional time upon the father providing to the mother a written report from his treating mental health specialist indicating that for a period of at least twelve months:
(a)the father has been compliant with his treatment regime, if any;
(b)the father has attended all appointments as directed save for in the event of an emergency;
(c)in the view of the practitioner, the father’s mental health has been stable for the preceding twelve months;
(d)to the best of the knowledge of the practitioner, the father has not had a mental health admission for the preceding twelve months.
14.After complying with order 12 above, the Independent Children’s Lawyer be discharged, subject to any appeals.
And the court notes thAT:
A.Pursuant to ss.65DA(2) and 62B 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 the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Tyler & Tyler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
The court has before it an application for parenting orders in relation to X (‘X’) born in 2010.
Factual background
The mother suffered from post-natal depression for a period after X’s birth.
The parties separated in 2012 (on the father’s evidence) or June 2013 (on the mother’s evidence) on a final basis and agreed to parenting arrangements for X which involved a ‘nesting arrangement’ whereby X remained living in the former family home and the parents took turns living there to care for X. This arrangement came to an end in about May 2015 when the mother asked the father to leave the former family home. The mother claims that the father was becoming increasingly controlling and his behaviour was escalating.
Procedural history
The mother initiated proceedings in June 2015, initially by way of an urgent recovery order. In the course of those proceedings, issues regarding the father’s mental health and family violence were raised by the mother.
Ultimately, those proceedings were resolved on the making of final parenting orders by consent on 18 August 2016 (‘August 2016 orders’) by the parents, who at that time were self-represented. An Independent Children’s Lawyer (‘ICL’) had been appointed, but did not support the parents’ consent position. Notwithstanding this, the August 2016 orders provided for X to spend equal time with the parents.
Between August 2016 and July 2018, the parties followed the August 2016 orders and it appeared that the father’s mental health had stabilised. However, from about July to August 2018, the mother became concerned about the father’s mental health. For example, the father texted the mother multiple times expressing concern about his phone being hacked and making numerous allegations about the mother and maternal grandmother. The mother also became concerned when X disclosed to her that during his time with the father, the father had told X that his (the father’s) phone had been hacked.
There was then an incident on 18 August 2018 at X’s sports game during a weekend which he was to spend with the mother. This will be discussed further below, but in essence, the mother says that the father’s behaviour became erratic, that X became visibly distressed because of it and the police were ultimately called and intervened.
The police sought an Apprehended Domestic Violence Order (‘ADVO’) on 20 August 2018 for the protection of the mother and X and on 22 August 2018, the mother commenced these proceedings seeking to urgently suspend the August 2016 orders. By order made on 3 September 2018, the father’s time with X was suspended.
The father’s behaviour continued to escalate over the remainder of 2018, and in late December 2018 he sought treatment as an in-patient of a psychiatric facility. The father was then again admitted to a psychiatric facility under an assessment order in February 2019 and again in March to April 2019.
In early 2020, the father recommenced time with the child, initially at a supervised contact service in City B and then supervised by the paternal grandmother from August 2020.
Proposed orders
Mother’s proposed orders
The mother seeks orders that:
(a)she have sole parental responsibility;
(b)X live with her;
(c)X spend time with the father each Sunday between 10:30am to 6:00pm
(d)provided that the father comply with his mental health treatment, X spend additional time with the father on special occasions, being day time only;
(e)X’s time with the father be in the paternal grandmother’s home with the paternal grandmother in substantial attendance;
(f)she be permitted to communicate with the father’s treating health professionals about his compliance with medication and mental wellbeing;
(g)the mother have the capacity to withhold X from spending time with the father in certain specified circumstances, namely in circumstances where there is a deterioration in the father’s mental health;
(h)the mother be permitted to suspend the father’s weekly time with X five times each year to allow her a holiday, provided she give the father 14 days’ notice and allows make up time; and
(i)the father communicate with X by Skype or Facetime once per week and by telephone once a fortnight.
The mother also seeks certain restraints on the father’s conduct towards her and around X.
Father’s proposed orders
The father proposes that the parents have equal shared parental responsibility, that X live with each parent on a week about basis and that otherwise, the August 2016 orders largely be reinstated.
ICL’s proposed orders
The ICL supports the mother’s application for sole parental responsibility, although the ICL seeks an order that the mother inform the father immediately of any decisions that she makes in relation to the child’s long-term care, welfare and development. The ICL also seeks orders which would see the father’s time with X continue to be supervised as it is at present.
Issues for determination
The issues that arise for determination in this case are:
(1)whether the parents should have equal shared parental responsibility, or whether the mother should have sole parental responsibility;
(2)what time X should spend with his father, and whether that time needs to continue to be supervised; and
(3)whether the father’s time with X ought be conditional upon the father engaging with, or continuing to engage with, his mental health providers.
In determining these issues, particularly the issue of whether the father’s time needs to continue to be supervised, the court is asked to determine whether the father poses a risk to the child due to his mental ill health and, if so, how any such risks should be ameliorated. The father denies that he poses any such risk, and as will be seen from the evidence, denies that he has any ongoing mental health issue.
Before turning to the evidence, I make the following general observations. This is a sad case. As noted by counsel for the ICL, it is clear that the father loves X very much and wants to be a significant presence in his life. I agree with the submissions made by counsel for the ICL that the father is not motivated in any way by malice in pursuing this application, but rather, a genuine desire to have a meaningful relationship with his son.
However, the father’s parenting capacity is affected, for the reasons which follow, not only by his mental illness, namely schizophrenia as diagnosed by Dr C, but perhaps more importantly, by the father’s lack of insight into his condition itself. Again, and tragically, it appears from Dr C’s evidence that this lack of insight too, is a manifestation of the illness itself.
Having had the benefit of observing the mother in giving evidence, I find that she too has X’s best interests at heart. She sees the benefit to X of having a meaningful relationship with his father, and has supported that relationship as evidenced by her consent to the 2016 final orders which provided for X to live with both parents. Having said that, the mother has acted protectively when she has seen and experienced a deterioration in the father’s mental health.
The fundamental issue for determination in this case is what the nature of the risk posed by X spending time with his father is and how that risk can be ameliorated in a way which will allow X to safely spend time with his father.
Having regard to the totality of the evidence, and having had the benefit of observing each of the witnesses giving their evidence, I find that the orders sought by the ICL,[1] save for orders 12 to 14 are in X’s best interests.
Evidence
[1] ICL’s outline of case filed on 20 February 2021.
Evidence of Dr C
Given one of the key issues in this case is the risk, if any, posed by the father’s mental ill health, I will deal with Dr C’s evidence before turning to the evidence relied upon by each of the parties.
The father was assessed by Dr C, consultant psychiatrist. Dr C assessed the father in December 2019, January 2021 and October 2021. In his October 2021 report, Dr C noted that he had diagnosed the father as suffering from ‘schizophrenia, manifesting delusions regarding his son, X’.
Dr C opined that the risk posed by the father is not likely to be in the nature of a physical risk of harm, but rather a risk of emotional harm. Dr C relevantly stated:
… [Mr Tyler] has no insight into the nature of his schizophrenic illness or that he has delusions. … although there isn’t a threat of physical harm to [X], there is danger of emotional harm because more likely than not [Mr Tyler] would not be able to limit his behaviour or conversation with [X] with respect to his delusional beliefs. … [Mr Tyler] was not engaged with a treating clinician and takes inadequate dose of an antipsychotic medication. Because of [Mr Tyler]’s lack of insight, it is his experience that no one understands his perspective and this is only because of the complex and persecutory actions of a wide range of actors. Understandably he is distressed.
Dr C summed up by saying that the father ‘came across as a genuinely kind and caring gentleman, perplexed as to why the world cannot understand his perspective and deeply hurt that he cannot have custody of X. There is no indication of anxiety or clinical depression. As previously, he manifests with a distinct set of delusional beliefs of a persecutory nature, with a core focus that there is an elaborate conspiracy with X being at potential harm and preventing him from having custodial care of the boy’.
In conclusion, Dr C confirmed his diagnosis of schizophrenia and stated that ‘Mr Tyler does not recognise he is clinically affected by that condition’.
The father’s evidence at trial was consistent with that view. He maintained that he did not suffer from schizophrenia, but rather, that his decline in mental health was caused by the trauma of being separated from his son.
The father’s incapacity to accept that he suffers from schizophrenia is a significant risk posed to X in his care. This is particularly so until X develops and is better able to understand the nature of his father’s illness and separate, for himself, his father’s delusional beliefs from reality. Relevantly, in his December 2019 report, Dr C stated:
Unfortunately, the nature of his psychotic thinking has direct impact on his capacity to parent. Because his delusional beliefs involve [X], there is risk that he interacts differently with the child or involves the child in his beliefs. Because he has no insight into his abnormal thinking, it would make it more difficult for him to contain himself. From the history ascertained, the examiner could not find evidence that there would be direct risk of harm in a physical sense. But there is lower grade risk that his abnormal mental state is confusing to the child or that there is discussion about matters that are inappropriate and undermining of the child’s relationship with his mother.
Dr C went on to opine that if the father’s symptoms ‘were to lessen or he were to take higher doses of medication with positive effect, then it would lead to a re-evaluation as to the amount of custody and access that would be appropriate’.
In December 2019, Dr C also recommended that the father engage with psychiatric services or a stable GP with interest in mental health issues and that he be subject to monitoring through such a practitioner to ensure he remains well and is taking his medication. He also indicated that it would be reasonable for the mother to be informed if he ceased his medication.
Dr C made similar observations in his further report of 20 January 2021. In preparing that report, Dr C had the benefit of reviewing the family report prepared by Ms D. He said that he broadly agreed with her findings and that his review of the matter ‘suggests that neither extension of supervised access or unsupervised access should occur’.
He went on to say that in his view:
… the current arrangement for access with mandatory supervision by [Mr Tyler]’s mother should continue and given [X]’s age it is not advocated that the number of hours per week is increased. As [X] becomes older and develops the capacity for comprehending more complex situations and understanding adult behaviour, he will develop resilience and capacity to tolerate difficulties, should his father become more unwell.
In the course of cross examination, Dr C said:[2]
The course of schizophrenia differs from patient to patient and there are some patients consequently that they have periods where it becomes better. Even if not on medication or without treatment…taking my consideration of [Mr Tyler], it is unlikely that he will make any significant substantial improvement without taking medication treatment.
[2] Court transcript at page 134.
Dr C, when asked, said that in his view at the moment, the father did not pose a risk of harm to others, that is, other than X. When asked how he made that assessment, Dr C said:
… it’s the nature of his delusions. They are not the type of delusions that lead to acts of physical harm. It’s his general demeanour that he’s obviously a pleasant person, and it’s just my experience that this presentation is not somebody who will become physically aggressive. He doesn’t use substances, which would disinhibit him. And there’s nothing in the history to suggest that he has acted aggressively.
In response to a question from the court as to how to manage the risk which arises if the father, in fact, has schizophrenia as diagnosed but does not accept that diagnosis, Dr C said:
The difficulty, because he doesn’t recognise it, that he may not want to participate in [those measures][3] that would manage the risk. However, there would obviously be medication. But the other thing is that he is under a review of a clinician. There’s a shortage of psychiatrists who would be available, but given time on a waiting list he could be seeing a psychiatrist on a monthly basis, even for a 10 to 15 minute visit. You could make a very accurate evaluation as to his mental state. There are some GPs who have a lot of knowledge and interest in psychiatry and would be able to do the equivalent. And this would be the most sensible measure.
[3] The word ‘resolutions’ is used in the transcript, this should have stated ‘those measures’.
Dr C went on to say that if the father’s condition significantly deteriorated, his assessment might change. However, he said that he would need to be grossly psychotic and if he were in such a state, it would be evident, even to the casual observer.
Finally, when asked by counsel for the mother whether the father’s mental illness and his presentation when he is unwell could be confusing for a child, Dr C opined that whilst that is possible, it depended largely on the child. Indeed, he said that in some cases it can lead to the child becoming ‘remarkably wise and sensible’.
This response is relevant, as the court’s role is not to limit a parent’s time with their child simply because the parent suffers from a mental health issue. The question for this court, in determining parenting orders, is to assess whether the parent with a mental illness poses a risk to the child spending time with them and, if so, what, if any, steps could be put in place to ameliorate that risk.
So much is clear from section 60CC2(a) and (b) of the Family Law Act 1975 (Cth) (‘the Act’) and the balance which must be struck in having regard to these competing considerations. The protective measures required may differ over time as the child gets older, and depending on whether the parent engages in appropriate treatment which might also ameliorate the risks.
Evidence of the mother
In support of her case, the mother relies upon her own trial affidavit sworn and filed on 26 January 2021 and the affidavit of the maternal grandmother, Ms E, sworn and filed on 17 February 2021. The mother also relies upon three psychiatric reports prepared by Dr C dated 5 December 2019, 20 January 2021 and 2 October 2021, as well as the family report prepared by Ms D dated 15 November 2020.
The mother gives evidence about the background to the current proceedings consistent with the summary set out above. The mother further gives evidence of her understanding of the father’s history of ill mental health, both prior to her relationship, based on information provided by the father, as well as from her own observations during the relationship and post-separation.
The mother also states that shortly after X’s birth, she was diagnosed with post-natal depression and that at about this time, the Department of Family and Community Services became involved with the family and X was briefly placed in the care of the maternal grandmother.
Relevantly, at paragraph [28] of her trial affidavit, the mother said:
I recognise that [Mr Tyler] is a loving father, he is very focused on doing his best for [X] but it is a permanent challenge for me trying to parent [X] in a way that enables him to safely have a relationship with [Mr Tyler] due to [Mr Tyler]’s patterns of unstable mental health and cyclic psychotic episodes.
The mother gives evidence about her experience of the father’s behaviour in 2015, the circumstances which led to the initiation of the 2016 proceedings and the background to the August 2016 final orders. I do not propose to set that out in detail.
The mother also gives evidence about the father’s conduct in 2018 which led her to issue these proceedings. In summary, she alleges that the father’s mental health again started to deteriorate when he:
·repeatedly made reference to his phone being hacked;
·claimed that his and X’s computer were also hacked and therefore they could not play computer games;
·attended X’s sports game on 18 August 2018 and said he was going to take X to the doctor because he had a sore knee, even though it was the mother’s weekend with X. The father then repeatedly asked the mother about counselling that she had arranged for X when the parties separated, and also stated that he and X wanted a 50/50 shared care arrangement;
·the mother said that the father’s conduct at the sports game on 18 August 2018 lasted for about two hours and she experienced it as being harassing and intimidatory;
·further, the mother says that at the match, the father made inappropriate comments in the presence or hearing of other children and parents to the point where another parent intervened and asked the father to stop; and
·the police were ultimately called and had to intervene to remove X from the father’s hold. X became distressed and confused and then ultimately left with the mother.
The mother further states that after the incident at the match, she did not return home for two weeks due to her fear of the father’s reaction to her having withheld X from him. She ultimately issued these proceedings some days later and, as stated, the father’s time was suspended.
The mother then details the father’s conduct in the period since his time with X was suspended, which includes, on her evidence, the father:
·defacing a work sign of at the workplace of a friend of the mother’s;
·sending derogatory correspondence to this same friend; and
·graffiting his own front fence with various derogatory comments including allegations that the mother has abused X.
The mother also says that there was a further incident on 4 March 2019 in which the father threatened the paternal grandmother and the police sought an intervention order to protect the paternal grandmother from her son.
The mother further gives evidence about:
·text messages sent from the father on 18 October 2019 in derogatory and intimidatory terms;
·the content of telephone communications between the father and X which she states are inappropriate, including discussing parenting issues and derogatory comments about the mother; and
·the impact that the father’s conduct is having on X. She says that she has organised counselling for X in the past, and most recently, that the counselling ceased when X said he no longer needed it in May 2020. The mother says that she has observed X to become clingy both during the day and at night time in the period prior to the commencement of these proceedings.
The mother concedes, however, that after an initial adjustment period, X now enjoys the time spent with his father at the paternal grandmother’s house.
The mother also relevantly says at paragraph [221] of her trial affidavit:
… I have no doubt that [Mr Tyler] loves [X] and will want the very best for him. However I am not confident that [Mr Tyler]’s beliefs about me will not impact on his ability to work with or communicate with me in a healthy way. In addition, I have had two separate ADVOs for my protection against [Mr Tyler] as a result of his threatening behaviour toward me. This history between us also our capacity to communicate as I continue to feel uncertain of my safety around him.
In the course of cross examination, the mother conceded that:
·the father shows interest in X’s daily life and spends time playing with X and that these are strengths that the father brings to X’s life;[4]
·when the father’s mental health is good, he is able to care for X;[5]
·shortly after X was born and she was diagnosed with post-natal depression, there was a period during which the maternal grandmother was required to be present when the mother was with X and that at that time the father was told not to leave X alone with the mother;[6]
·she did not tell the father that she had arranged counselling for X, notwithstanding orders being in place for the parents to have equal shared parental responsibility;[7]
·she would probably want to know had the father arranged counselling for X;[8]
·the paternal grandmother is an appropriate supervisor who would act to protect X;[9]
·X’s time with his father went well and without incident from the 2016 final orders to the ‘sports incident’ in August 2018;[10]
·the father has demonstrated that he has lengthy periods when he is mentally well;[11] and
·she did not object to X’s time with the father occurring other than at the paternal grandmother’s home, as long as the paternal grandmother was in substantial attendance.[12]
[4] Court transcript at page 7.
[5] Court transcript at pages 13 to 14.
[6] Court transcript at page 19.
[7] Court transcript at page 21.
[8] Court transcript at page 22.
[9] Court transcript at page 24.
[10] Court transcript at page 27.
[11] Court transcript at page 27.
[12] Court transcript at page 28.
In relation to the evidence of the maternal grandmother, this is set out in her affidavit affirmed and filed on 17 February 2021. She gives a history of the parties’ relationship, their efforts to start a family and the struggles they each experienced when X was born, which ultimately resulted in a brief involvement with the family by child protection.
The maternal grandmother also sets out her observations of the father’s threatening and intimidatory behaviour towards herself and the mother and various threats and derogatory comments made to her by the father during 2020.
Evidence of the father
The father relies on his trial affidavit affirmed on 10 October 2021 and filed on 13 October 2021 and the affidavit of the paternal grandmother, Ms F, affirmed on 10 October 2021 and filed on 18 October 2021.
In his trial affidavit, the father states that he:
·is currently in a relationship with Ms G although they don’t live together;
·lives in a house owned by his parents; and
·receives a disability support pension.
In relation to X, the father’s evidence is that since recommencing time with him, X has been happy and healthy as compared to the situation prior to that where X was under a mental health care plan. The father gives evidence about his involvement in caring for X during the relationship and post-separation.
By way of background to the incident at the sports match in August 2018, the father says that X appeared to be anxious in August 2018. He had therefore discussed this with the principal of X’s school and suggested that it might be appropriate for X to see a counsellor. According to the father, shortly after this, X told him that he had already seen a counsellor, and that he had been doing so for about two years.
The father gives evidence about the inquiries he then made regarding this counselling, both of the school and the mother, and his concern when he found out that X had been seeing a counsellor without the father’s knowledge or consent.
The father’s version of the incident on 18 August 2018 at X’s sports match differs from the mother’s. The father relevantly says that:
·X was reluctant to go to the sports match;
·having recently become aware that X had had some counselling, he asked the mother to explain what the counselling was for and the mother dismissed him;
·the mother called the police who attended, but the police said they would not get involved as this was a custody issue;
·at the end of the sports game, the mother and her friends grabbed X and took him away; and
·the father approached X with his dog and asked if X wanted to hold the lead and the mother swore at him.
The father said that X only started crying when one of the mother’s friends snatched the dog lead out of X’s hands and the father says that X was calling out for his father as he was ‘dragged away by Ms Tyler over the gravel. I remained calm and did not react. I went to my car and returned home’.[13]
[13] Father’s affidavit affirmed on 10 October 2021 and filed on 13 October 2021 at paragraph [38].
In response to some questions in cross examination about this incident, the father did concede that he suggested that X stay with him until the issue of the ‘counselling’ was sorted out and that the parties then revert to a shared care arrangement. However, the father denied that he was aggressive during this conversation.[14]
[14] Court transcript at page 51.
Having had the benefit of hearing evidence from each of the parties, and having regard to the other evidence in relation to the father’s conduct at this time, where there is a dispute between the parties’ description of this incident, I prefer the evidence of the mother to that given by the father.
The father denies the mother’s allegations of family violence. He concedes that an ADVO was made against him in November 2015, although he denies threatening the mother. He says that he only consented to the order being made without any admission and states that he was not charged with any offence arising from the mother’s allegations.
Moreover, whilst he concedes that the police were called to X’s sports match, the father says that no family violence occurred on that day and that he was not subsequently interviewed or charged in relation to that issue. On the contrary, the father asserts that he was the victim of the mother’s controlling behaviour during the relationship. The father does, however, concede that he was issued with an ADVO following the incident at X’s sports on 18 August 2018.
It was put to the father that there were comments in the subpoena material from Region H Health which suggests that the father was planning to burn down X’s school. The father categorically denied that he ever had such an intention. Notwithstanding this denial, the father, in cross examination, conceded that he said:[15]
‘That place should be burnt down”.
[15] Court transcript at page 46.
He went on to say, however, ‘It’s a double brick … school. It’s impossible to burn down. I had no intent. I’ve never burnt anything, and I’ve never started a fire. I’ve never attempted to start a fire.’
In the course of cross examination, the father conceded that:
·he sent the mother some derogatory texts, although he says that this was in response to his feelings of frustration at X being unreasonably withheld from him;[16]
·he did graffiti the fence at his property, but said that it was simply a form of peaceful protest on his part;[17]
·he hit and damaged his mother’s car with a baseball bat and that this incident resulted in a domestic violence order being taken out against him, but denied that his mother was intimidated by this incident;[18]
·he attended the workplace of a friend of the mother’s, Ms J, and wrote ‘Burn in hell, from Mr Tyler, anti-child abuse dad’ in black texta on Ms J’s work sign;[19]
·he left an envelope at Ms J’s workplace which contained handwritten notes which were derogatory of the mother;[20] and
·he graffitied a sign at X’s preschool with further obscenities.[21]
[16] Court transcript at pages 37 to 38.
[17] Court transcript at page 39.
[18] Court transcript at page 39.
[19] Court transcript at page 44.
[20] Court transcript at page 44.
[21] Court transcript at page 45.
The father continues to raise concerns about the mother’s mental health, although this relates largely to the post-natal depression that the mother suffered from in 2010.
In relation to his own mental health, the father concedes that he suffered a drug induced psychosis when he was 21 years of age, for which he received treatment. The father denies that that incident is in any way related to his current mental health state. The father does, however, concede that his mental health has deteriorated since the sports incident, but he maintains that this has been as a result of X being withheld from him since this incident.
He also concedes that he voluntarily admitted himself into a psychiatric unit in December 2018, but explains this on the basis that he ‘did not wish to spend time with family without X present and did not wish to be alone during this period’. The father’s evidence is that he remained there until his discharge on 31 December 2018.
As stated, the father concedes that in March 2019 he graffitied the front fence of his property and damaged his mother’s car. Again, however, he seeks to explain this conduct as being the result of his distress at not seeing X, rather than as a result of any underlying mental health condition. The father acknowledges that he was charged with criminal offences as a result of this behaviour, pleaded guilty and was placed on a 24-month community corrections order.
The father then says that he admitted himself to another psychiatric unit for a week and was prescribed medication, which he was allergic to, and he therefore discharged himself. He says that he subsequently found out that he had been listed as a missing person by his parents who did not know where he was. The police attended his home and returned him to the psychiatric facility where he remained for three weeks for further support.
He says that on his discharge, he engaged with mental health service providers as directed until October 2020 when he was told that he no longer required support. The father says that since then he has continued to access his GP and follow his recommendations. The father also states that he is aware that he is required to continue taking his prescribed medication and is also aware of the importance of maintaining stable mental health.
The father confirmed that a diagnosis of schizophrenia had been made by Dr C and that at the time of the trial he was taking certain medication for that condition. However, at trial, he maintained that he did not believe that diagnosis to be correct.[22] He denies that he is or has at any time been delusional, with the exception of the drug induced psychosis when he was a young adult. Relevantly, in cross examination, the father maintained that Dr C came to the conclusion he did about the father having schizophrenia on the basis of information provided by the mother and also on the basis of reports provided by K Clinic, both of which were inaccurate.
[22] Court transcript at page 55.
The father further said:
… I know what happened that day at the [sports match] and I’ve stood by that… I could have just turned around and … done … what [Dr C] asked and that was double my dosage of … Paliperidone as he suggested, and complied and said that I’m fine now and I’m feeling a lot better, but I haven’t done that because the truth is I wasn’t schizophrenic that day at the [sports match] and I wasn’t – I’m not schizophrenic now …[23]
[23] Court transcript at page 55.
The father says that his time with X, most recently supervised by his mother, has been very positive. That time occurs at his parent’s home and often involves the extended family, including X’s cousins. The father says that at times there are some difficulties with the time being limited to occurring only at his parents’ home. In particular, at paragraphs [136] to [137] of his trial affidavit, the father states that X is aware that the paternal grandparents’ home is only a few minutes away from his home and will often ask when he can go and visit Ms L, their dog and also look at his things in his bedroom at his father’s home.
The paternal grandmother confirms that the father lives in a property owned by her and her husband. She further states that she does not believe that her son requires supervision in his time with X and that they have a loving and caring relationship. At the time of trial, she had been supervising X’s time with his father for over a year. She says that X clearly enjoys the time he spends with his father.
The paternal grandmother’s evidence, consistent with that given by the father, is that she does not believe that the father suffers from schizophrenia as diagnosed, but rather that he suffers from the trauma of ‘11 years of this going on’ which I understood to be a reference to the dispute between the parents post-separation.[24]
[24] Court transcript at page 117.
Notwithstanding her view about the diagnosis of the father’s condition, the paternal grandmother conceded that the father had been involuntarily admitted to a psychiatric unit and indeed, confirmed that on one occasion she herself drove him to a psychiatric unit on or about 19 December 2018. She said that at that time, she was ‘desperately looking for help’. It is clear from her evidence that the paternal grandmother was concerned for the father’s wellbeing at that time, particularly given that he was not seeing X at the time and he was struggling with that, particularly as the family was approaching the Christmas period.
I accept that the father genuinely wishes to have a meaningful relationship with X, to guide him through life and to be a support to him as he grows into a man. I also accept, having heard the father’s evidence, that he does not consider himself to be a risk to X and that he would be devastated by orders which continue to require X’s time with him to be supervised.
However, it is of concern that the father appears to lack insight into his mental health issues. This lack of insight together with the nature of his worries as they relate to X’s health and wellbeing, are cause for concern, particularly until X is of an age where he can better understand the nature of his father’s illness.
Family report
The court has also had the benefit of a family report prepared in this matter by Ms D dated 15 November 2020. Ms D relevantly noted:
[X] was reportedly unaware of who might be upset if there was a change made to the time he spends with his father. In relation to his own feelings [X] indicated that he feels things are working well for him as they are and that while he might like it a little to live week about, he prefers things as they are.
As to the child’s relationship with each parent, Ms D noted that he ‘appears to have a warm and loving relationship with both his parents.’ Ms D went on to observe that the mother seemed to be ‘focussed on what benefits X most, and of being able to prioritise X’s needs above her own.’ By comparison, about the father, Ms D noted:
[Mr Tyler] impressed as attached to [X] in a manner that has a feeling of obsession about it, and that [Mr Tyler] is prevented from insight about what would most benefit [X], most likely due to his mental illness as it was described by [Dr C].
Ms D went on to opine:
… it was clear that [X] is secure and benefitting from living with his mother while also being able to have an ongoing relationship with his father and paternal family. Provided his relationship with [Mr Tyler] continues to be appropriate, at [X]’s age he will not lose his internalised connection with his father if the time he spends is enough to maintain that connection. For a child at the age of 10 years one day weekly or a couple of days fortnightly is time enough to maintain the connection when it is a positive one, along with weekly phone and facetime or skype time. …
As [X] matures, for example, when he is attending secondary school and can better ensure his own safety, there may be opportunity for him to spend time with his father unsupervised, for example, each alternate weekend when [Mr Tyler] has demonstrated compliance with professional opinion about his medication.
It is for these reasons that there is a reluctance to make recommendations for [X]’s time with his father to increase or be unsupervised.
In response to some questions from counsel for the mother about the impact on X of the father’s mental ill health, Ms D said:
He seemed to be, as much as possible, protected from it. And by that I meant his mother didn’t appear to have been talking to him about it in a negative way.
… it’s a reality … if you have a parent who has a … serious mental illness, it’s a reality that … you as a child need to come to terms with too. And so having it explained in a way that helps you understand that it’s not a fault of the parent, that it’s … an illness, and that they sometimes take medication and sometimes be hospitalised, sometimes you can’t see them because of that, then that also tends to reduce the possible trauma impact or the possible negative impacts from it. It’s ... part of the reality.
In terms of the child’s wishes as to time with his father, Ms D expanded on what was in the family report by saying:[25]
… he appeared to have a warm and loving relationship with his father. The only hint of confusion is that he said that … he was happy enough with the current arrangements but that he might like a little bit week-about and to say ‘a little bit’ to me is an indication that he might feel he needs to please somebody by saying that. So the overall impression that I had was that … he was happy enough with the circumstances as they were because he got to see his father quite often. He didn’t speak about being fearful of him. I put that down to being quite well protected from the father’s mental health issues …
[25] Court transcript at page 108.
As to the need for supervision, Ms D reiterated that in her view, X’s time with the father should continue to be supervised ‘until X is of an age where he can keep himself safe if something happens which means he needs to understand and have a safety plan himself’.[26]
[26] Court transcript at page 109.
When asked by counsel for the father, what age that might be, Ms D said ‘I would probably think about mid adolescence – 14 or 15 years old, where he could, if need be, even leave the property and get help …’.[27]
Consideration
[27] Court transcript at page 110.
Parental responsibility
Section 61DA of the Act provides that in making parenting orders, the court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. Such an order would require the parents to make joint decisions about the child’s long term interests such as matters relating to health, education and religion, for example. The presumption, however, does not apply where there are reasonable grounds to believe that a parent has engaged in abuse or family violence. The presumption can also be rebutted if the court is satisfied that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Having regard to the totality of the evidence in this matter, I am satisfied that an order that these parents have equal shared parental responsibility would not be in X’s best interests. I accept the evidence given by Dr C, namely, that the father lacks insight into his condition and, given the nature of his focus on X’s wellbeing, it would be difficult for him to be constructively involved in decisions about X’s long term interests. As noted by the family consultant at paragraph [84] of the family report, ‘it would benefit X if Ms Tyler does not need to consult with Mr Tyler about major parenting decisions for X such as educational and major medical needs’.
I accept on the basis of the totality of the evidence that the mother would continue to support X’s relationship with his father. It is also clear from all of the evidence that X enjoys his time with his father and that having it supervised by the paternal grandparents has facilitated that time to occur in a relaxed environment and has allowed X to continue to have relationships with the broader paternal family.
In 2016, the parties agreed to orders providing for equal shared parental responsibility and they were able to manage together for a period of time after the 2016 final orders were made. However, as the father’s mental wellbeing deteriorated, his capacity to engage with the mother in a reasonable and child-focussed manner diminished. If the parties were to have equal shared parental responsibility, they would need to be able to jointly make decisions for X’s long-term interests.
The father’s conduct in the lead up to the sports game incident in August 2018 demonstrates that the parties were not able to communicate effectively and in a child-focussed manner at that time. The escalation of the situation to the point where police had to attend and assist the child to go home with the mother is not indicative of adults who are able to jointly make decisions about the child’s long-term needs.
Having regard to the totality of the evidence, in my view, an order for the parties to have equal shared parental responsibility is likely to lead to increased conflict between them, particularly having regard to the nature of the father’s obsessions about X’s wellbeing and his lack of insight into his medical issues. This conflict is not in X’s best interests.
Therefore, on balance, and having regard to the totality of the evidence, I am satisfied that it is in X’s best interests for the mother to have sole parental responsibility.
Supervised time
In making parenting orders, the court is required to have regard to the best interests of the child. In determining what is in X’s best interests, the court is directed to consider the factors set out in section 60CC of the Act. The two primary considerations in section 60CC(2)(a) and (b) require the court to balance, on the one hand, the need to facilitate the child having a meaningful relationship with both parents, and on the other, the need to protect the child from risk of harm.
In this case, as is clear from the evidence of Dr C, the risk posed to X is more likely in the nature of a risk to his emotional wellbeing, rather than a risk of physical harm, having regard to the father’s mental ill health, and his views about the need to protect X.
It is common ground that X has a loving and meaningful relationship with his father, namely one which is important, significant and valuable for the child.[28] He also has a loving and close relationship with the extended paternal family.
[28] Mazorski v Albright (2007) 37 Fam LR 518.
The primary issue for determination in this case is whether the father’s time ought to continue to be supervised. As stated, the mother and the ICL seek that the father’s time continue to be supervised by the paternal grandmother upon the giving of an undertaking, which among other things, would require her to cease X’s time with his father if he was concerned about X’s welfare and to telephone the mother immediately to return X to her care, if she does terminate time.
If no supervision is required, the next issue for determination is how the child’s time with the father ought to progress. The father seeks orders which will allow him to move to an equal shared care arrangement and to remove the need for any supervision.
There is clear benefit to the child of continuing to have a meaningful relationship with both parents. However, that must be balanced against the need to protect the child from physical or psychological harm. In determining whether ongoing supervision is required, the court must be satisfied that X would face an unacceptable risk of harm if he were to have unsupervised time in the father’s care.
In this case, the evidence of Dr C is that the father poses a risk of psychological harm to the child because of his schizophrenia, his lack of insight, and the nature of the delusions he has about the child’s wellbeing in the mother’s care.
The evidence shows that the father has suffered from mental ill health at various times in his life. The father concedes that he suffered a drug induced psychosis in his early adult years. He has been diagnosed as suffering from schizophrenia by Dr C, although he does not accept that diagnosis. He says that his psychological ill health is the result of the trauma that he has suffered as a result of not being able to spend time with his son.
Be that as it may, the evidence shows that in 2018, the father became particularly focussed on X’s wellbeing. He became particularly concerned in mid-2018 about X’s health in the mother’s care, in particular, focussing on the fact that she had arranged counselling for him without obtaining the father’s consent. Although it may be said that the mother should have obtained the father’s consent, the father’s response could not be described as appropriate or proportionate. Nor could he, in giving evidence, provide any reasonable explanation for his fixation on the fact that X had accessed counselling other than that he had not been involved in this decision. It is particularly relevant that the issue of counselling arose in the context of him wanting to arrange counselling for the child himself.
The evidence also shows, and I find, that at about the same time, the father’s behaviour was also concerning, insofar as he was convinced that:
·his phone and his computer had been hacked, and he involved X in these ideas and worries;
·there was a sinister reason for the doctor having two files for X, when it ultimately transpired that this was due to an administrative error following the maternal grandmother taking X to the doctor; and
·there was something sinister in the fact that X had received counselling without the father’s knowledge or consent.
It is also common ground that in this context, there was an incident at X’s sports match on 18 August 2018 in which, on the father’s own evidence, he had intended to keep X in his care until he could resolve the ‘counselling issue’. It is common ground that the police ultimately attended, that X returned home with the mother and that following this incident, the mother obtained an ADVO, withheld X from the father and ultimately commenced these proceedings which saw a suspension of X’s time with the father.
As stated, to the extent that there is a difference between the parents as to what occurred on the 18 August 2020, I prefer the mother’s evidence. I find that the father was in a heightened state and whilst I have no doubt that he believes that his version is correct, I do not accept that it is an accurate version of what occurred. In coming to this view, I have had regard to the police presence at the sports game and the fact that the police applied for an ADVO following this incident for the protection of the mother and X. An interim ADVO was ultimately granted on 9 October 2018.
The mother’s evidence, which I accept, is that following the sports incident and the suspension of the father’s time, the father’s conduct further escalated over the period from September 2018 until early February 2020, when the father recommenced spending time with X on a professionally supervised basis. It is common ground that during this time, the father made and sent abusive and derogatory texts and phone calls to the mother and to the maternal grandmother, graffitied his mother’s fence and had a physical altercation with his mother in which he smashed her car with a baseball bat and was sentenced to a 24-month community corrections order in relation to charges arising from the graffiti and damage to his mother’s property.
It is also common ground that in late 2018 to early 2019, the father was admitted to a mental health facility on three separate occasions. On the last occasion, the father left the facility and was brought back and admitted as an involuntary patient.
It is the mother’s case that over the course of 2020, during which time the father’s telephone time with X had resumed, the father continued to inappropriately refer to these proceedings and ultimate live with and spend time arrangements in his discussions with X.
It is submitted for the ICL that the evidence in this case gives rise to concerns that the father poses an unacceptable risk of harm to X’s psychological wellbeing as a result of his mental ill health. There are further concerns that as a result of his refusal or inability to accept the nature of his mental ill health, he will not seek or undertake the appropriate treatment he needs to manage his condition.
In response, it was submitted for the father that on the totality of the evidence, and in circumstances where any risk of harm posed by the father is a risk of psychological not physical harm, the court can take comfort that the father does not pose an unacceptable risk of harm to X from the following:
·there has been no concerns raised about the father’s conduct around X since he recommenced supervised time in late 2020;
·there is no evidence that the X has suffered any psychological harm as a result of being exposed to his father, and indeed, counsel for the father pointed to the evidence by the family consultant who noted that X appears to have been shielded from his father’s condition;
·that X’s age will increasingly be a protective factor; and
·the remorse that the father showed in the witness box about the content of the text messages he sent to the mother and his shame at the thought that X may have seen them.
Insofar as there is a risk arising from the fact that the father may not be getting the treatment he needs if he does not accept the diagnosis of his condition, it was submitted for the father that this risk would be mitigated by reference to Dr C’s opinion that if the father’s condition deteriorated into a serious psychosis, this would be evident to anyone around him and appropriate protective measures could be implemented.
In closing submissions, it was submitted for the mother that the father’s failure to accept his diagnosis is a major risk issue in this case, as is his failure and/or refusal to follow recommendations regarding medications.
Counsel for the mother also states that whilst Dr C said that it was not likely that the father presented as a risk of physical injury, there was nevertheless other evidence before the court which might be cause for concern about the risk of physical harm that the father might pose. In particular, reference was made to the fact that an AVO was granted in 2018 which expired in January 2021, the father lashing out at the paternal grandmother with a baseball bat and the graffiting on his own fence, among other things.
Findings
X is 11 years old. He has a lovely and warm relationship with his father. All parties agree that orders should be made for the father to continue to have regular time with X to allow X to continue to have a meaningful relationship with his father. The question is how this can be done in a way that appropriately mitigates any risk of harm.
The father has mental health issues. That in itself does not automatically represent an unacceptable risk of harm. The question is whether the evidence before this court is sufficient to conclude that the father’s conduct, whether a manifestation of the father’s illness or not, presents an unacceptable risk of harm which can only be mitigated by ongoing supervised time.
The risk in this case arises largely from the nature of the father’s mental ill health, which appears to manifest in his focus on X’s wellbeing and ideas that X is at risk in the mother’s care as well as the fact that the father does not accept that diagnosis made by Dr C which could be treated and managed through medication. Even at trial, the father continued to maintain that his decline in mental health was due to the trauma he suffered as a result of not be able to see X, rather than any diagnosable mental illness. He produced no evidence to support his theory in this regard. The only evidence before the court is the diagnosis made by Dr C and maintained after three different sessions with the father over the course of two years. I accept Dr C’s evidence and also accept that sadly, the father’s lack of insight into his condition is itself a function of that condition.
I have also had regard to the fact that the father’s conduct seems to have largely settled down since his time with X has recommenced, albeit on a supervised basis. However, I note that the mother’s evidence, which I accept, is that even during this time, the father has continued to make inappropriate comments to X during phone calls. Whilst it appears that the treatment which the father has received over the course of late 2018 and 2019 has helped to stabilise his mental health, his continued refusal to accept that he has a diagnosed mental health issue which requires ongoing treatment is of concern.
That together with the florid conduct which he engaged in during late 2018 and in 2019 leads me to conclude that there is an unacceptable risk of harm to X’s psychological wellbeing if the father were to spend unsupervised time with X.
As stated, X is 11 years of age. As noted by Ms D, as he gets older, he will be more able to understand the nature of his father’s illness and act protectively by, for example having a safety plan in place. Ms D expressed the opinion that in the circumstances of this case, X’s time would need to continue to be supervised ‘until X is of an age where he can keep himself safe if something happens which means he needs to understand and have a safety plan himself.’[29] In this context, the following exchange occurred with counsel for the mother:
Counsel for the mother: Yes and what would that look like, a safety plan?
[Ms D]:He would need to have his own phone so that he could contact, you know, identified people … if he was in need of support, if his father was … becoming psychotic and he needed some help.
[29] Court transcript at page 109.
The following further exchange then occurred with counsel for the father on this issue:
Counsel for the father: And you also gave an answer … when you said when [X] is at an age to keep himself safe … you talked about what tools he would need to keep himself safe … focussing on that issue of age, he’s 11 now. … was there some particular sort of age bracket you had in mind of when you think he might be more capable of engaging in what I might call self-protective behaviours?
[Ms D]:I would probably think about mid adolescence – 14 or 15 years old, were he could, if need be, even leave the property and get help, … when somebody has a full psychosis it can be very disturbing for adults because the lack of reality is very strange. And so if it’s disturbing for adults it’s obviously disturbing, and sometimes more so, for children. … I would think that when he’s around 14 or 15 years old, he could have enough education … to understand what’s going on and to be able to do what he needs to do to keep himself safe, which could be to leave. A safety plan would mean talking with somebody and actually having specific actions written down and though about and mentally practiced before he has to do them.
Counsel for the father put a series of questions to the family consultant about the restrictive nature of the orders sought by the mother that all time between the father and X occur at the paternal grandmother’s home. Ms D conceded that that might impose a restriction, particularly as X gets older. Ultimately, the orders sought by the ICL, with which the mother ultimately agreed at the conclusion of the hearing, does not impose any restriction on where the father’s time is to occur, other than that it must be supervised by the paternal grandmother and subject to the paternal grandmother being subject to an undertaking in the specified terms.
In the circumstances of this case, I am satisfied that having regard to section 60CC(2A), the appropriate balance between section 60CC(2)(a) and (b) is struck by the orders set out at the commencement of these reasons. I am satisfied that given the father’s illness, his lack of insight into his illness and the impact that his delusions could have if he had unsupervised time with X, it is appropriate for an order at this stage that his time continue to be supervised. Whilst this is an unusual order to be made on an ongoing basis, it is warranted having regard to the totality of the evidence in this matter.
I also note that order 16 of the ICL’s proposed orders provides that the father may seek to vary these orders to seek unsupervised and/or additional time if the father provides the mother with a written report from his treating mental health specialist indicating certain specified matters, which essentially go to establishing that he has continued to attend appointments as directed and his mental ill health has been stable for at least a period of 12 months.
An order in those terms would permit the father an opportunity to seek to revisit these orders if he can address the risk identified as justifying the orders for supervision.
The orders set out at the commencement of these reasons require the paternal grandmother to supervise the father’s time with X and require her to provide an undertaking which would require her to bring that time to an end and to notify the mother, if X were at risk. Those orders appropriately mitigate the risk to X whilst at the same time continuing to allow X to spend meaningful time with his father. Moreover, in coming to this view, I have also had regard to Dr C’s evidence that if the father’s mental health were to deteriorate, it would be evident even to the casual observer and in those circumstances, the paternal grandmother would be required to bring the time to an end.
Other parenting orders
The ICL seeks orders which permit the mother to suspend the father’s time if he fails to comply with order 5 (that the time be supervised by the paternal grandmother) or order 11 (precluding the father from making specified inappropriate comments to X or in his presence).[30] The ICL did not make any submissions as to why these orders were necessary or appropriate. The first proposed order is not necessary. It simply repeats the effect of order 5, which is that the father’s time is conditional upon the paternal grandmother supervising. If the paternal grandmother does not supervise, the time cannot proceed. Similarly, order 11 imposes a restraint on both parties engaging in certain conduct. If either party breaches those injunctions, the appropriate course is to bring a contravention proceeding.
[30] Order 12 of the ICL’s proposed orders.
No submissions have been made as to why an order in the terms of order 12 is appropriate in the circumstances of this case. There is also a lack of certainty as to how order 12 would operate, in that it provides that any suspension would only continue for so long as is necessary to ensure the father’s compliance. There is a question of how this would have effect, for example, where the father has said something to X about his living or spend time arrangements. There is also a question of how the mother would determine what period of suspension would be required to ensure the father’s compliance in future. I am not satisfied that the ICL has established that proposed order 12 is in X’s best interests.
In her application, the mother also sought an order that she be at liberty to communicate with the father’s treating doctors about his compliance with medication and ongoing mental health and that his treating mental health practitioners be given an irrevocable authority to discuss the father’s mental health. It was not entirely clear whether she continued to seek this order by the end of the trial. Her counsel indicated that the mother supported the spend time orders sought by the ICL which did not include such an order. But in any event, in circumstances where I propose making orders for the father’s time to remain supervised, I am not satisfied that it is necessary to make these further orders in these terms sought by the mother.
The orders sought by the ICL also include orders requiring the father to advise the ICL within 7 days of a list of his current treating medical practitioners and permitting the ICL to provide those named individuals with the reports prepared by Dr C, the family report dated 15 November 2020 and a copy of the final orders.[31]
[31] Orders 13 and 14 of the ICL’s proposed orders.
The ICL did not address these orders in closing submissions. Nor did any other party address me on the appropriateness of such orders, or indeed whether the court has the power to make such orders. In circumstances where orders are made for the father to have only supervised time, and in circumstances where the father did not seek such orders, I am not satisfied that orders in these terms are necessary. Ultimately, it is hoped that the father continues to engage with his treating medical practitioners and follows their recommendations. It is in his interests to do so if he wishes to progress his time with X in the future.
The ICL also seeks an order that they have leave to provide a copy of these orders to X’s school and treating medical practitioners. Again, no submissions were made in support of these orders. Nevertheless, in circumstances where the mother has sole parental responsibility and where the father’s time is to be limited to supervised weekend time only, it is appropriate for X’s school to be advised of the terms of the parenting orders made. Similarly, it may be necessary for X’s treating medical practitioners to be given notice of the terms of these orders so that they are aware of orders relating to parental responsibility.
Additional considerations in s 60CC(3)
I will now turn briefly to the additional considerations in s60CC(3) in so far as they are relevant.
The family consultant noted that X loves both of his parents and does not wish to be critical of either of them. She reported at paragraph [65] of her report that ‘X was reportedly unaware of who might be upset if there was a change made to the time he spends with his father. In relation to his own feelings X indicated that he feels things are working well for him as they are and that while he might like it a little to live week about, he prefers things as they are’.
Later in her report at paragraph [81], the family consultant noted ‘There was no indication at interview that X misses his father, but there was a sense that he continues to grieve the end of the parties’ relationship. There was also a concern that X is aware of his father’s need and that X felt he should express that somewhat, rather than feeling he could freely express his own wishes and needs…’.
Having regard to this evidence, to the extent that they are relevant, X’s wishes are consistent with the orders sought by the ICL, namely that the current arrangement remain in place.
I have discussed and considered the nature of X’s relationship. I accept each of the parents love X and wish to have a meaningful relationship with him. I also accept that each of the parties has taken an active and present role in X’s life and fulfilled their parental obligations;
The orders sought by the ICL would see the least change for X from the current arrangement, although I acknowledge that they do represent a departure from the shared care arrangement that was in place from 2016 to mid-2018.
There are no practical difficulties with the proposed orders, other than those associated with the paternal grandmother being required to continue to supervise X’s time with his father. In the circumstances of this case where the father lives in close proximity to the paternal grandmother, and where the evidence is that the father and the paternal family share a close bond, the proposed orders would not seem to give rise to any practical difficulties or expense which would substantially affect X’s ability to maintain his relationship with his father.
I have also discussed the historical issues of family violence above. There are no current intervention orders in place.
As noted above, the orders provide that the father might seek to revisit the orders for supervision and/or the amount of time in certain circumstances. They clearly leave open the possibility that there will be further litigation in this matter. However, in circumstances where I have determined for the reasons set out earlier that the risk posed requires ongoing supervision of X’s time with his father, such an order is necessary. When viewed in their totality, however, I am satisfied that these orders are framed in such a way as to minimise the need for further litigation, to the greatest extent possible.
Conclusion
For each of these reasons, I therefore make the orders which are set out at the commencement of these written reasons.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 28 April 2022
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