Ungar and Stillman

FAMILY COURT OF AUSTRALIA

UNGAR & STILLMAN

[2018] FamCA 180

FAMILY LAW – CHILDREN – where the mother fails to file any material – where expert evidence is unchallenged – where there is a long history of litigation and both parents are without legal assistance – where proposals are not in the best interests of the children – where therapeutic approach is the only remaining option to create a meaningful relationship for the children with both parents.

Family Law Act 1975 (Cth)

Ungar & Stillman [2017] FamCA 987

APPLICANT:

Mr Ungar

RESPONDENT:

Ms Stillman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8647

2008

DATE DELIVERED:

26 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 February 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sofra Solicitors

Orders

That all existing parenting orders are discharged.
That the father have sole parental responsibility for the children B born .. 2005 and C born … 2007.
The children live with the father.
The father and mother (and to the extent necessary, the children) attend upon Ms F (provided she is qualified to do family therapy and/or cognitive behavioural therapy) or such other appropriately qualified person as nominated by the Independent Children’s Lawyer and the therapist thereafter make such arrangements between the parents and the children to develop their relationships consistent with the protection of the children from physical and emotional harm.
That the Independent Children’s Lawyer be at liberty to provide to the therapist:
(a)       A copy of the affidavit of Dr H;
(b)       The family report of Ms G;
(c)       A copy of these orders; and
(d)       A copy of the reasons for judgment this day.
That the mother produce to the Independent Children’s Lawyer the name of her psychiatrist and the Independent Children’s Lawyer provide that person with copies of the documents referred to in paragraph (5) and thereafter the mother provide the Independent Children’s Lawyer a report as to that psychiatrist’s opinion about her mental health the details of which the Independent Children’s Lawyer may then advise the therapist.
Each of the parents and the Independent Children’s Lawyer has liberty to apply for variation of these orders and to seek other parenting orders upon applications supported by an affidavit.
That the Independent Children’s Lawyer is discharged from the proceedings as and from 28 February 2020.
That to the extent necessary, the therapist is authorised by the court to seek to have the mother produce urinalysis reports if he or she considers that necessary to assist in developing the relationship between the mother and the children and, to request the mother to authorise him or her speaking to the mother’s psychiatrist. If the mother declines such requests, the father and/or, the Independent Children’s Lawyer, has liberty to apply for further orders.
That all extant applications for final parenting orders are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8647 of 2008

Mr Ungar

Applicant

And

Ms Stillman

Respondent

REASONS FOR JUDGMENT

The reasons that follow explain the orders made upon the application of Mr Ungar (“the father”) arising out of his dispute with Ms Stillman (“the mother”) concerning their two children B now aged 13 years and C now aged 10 years.
The orders have to be seen in the context of at least nine years of dispute since the parties’ marriage broke down in 2008. Whilst there was litigation early after the breakdown of the marriage, the intensity of the dispute can be seen to have increased in around 2015 onwards.
The father estimated that in that latter period, he had been to court about 15 times. By 30 November 2017, B was living with the father and having no contact with the mother. At that same time, C was living with the mother and from the father’s perspective, having unsatisfactory time including on one occasion, running away from him. Each blamed the other for the respective problems.
On 30 November 2017, I set the matter down for a final hearing on 27 February 2018 and directed that affidavit material be filed and each party set out precisely what orders they were seeking. The father complied but the mother did not.
At the same hearing on 30 November 2017, on the basis of the evidence presented on the application of the Independent Children’s Lawyer, I suspended all parenting orders, placed B and C with the father and indicated that the mother’s time with the children was to be arranged under supervision through the D Contact Service. My reasons for those orders, including a synopsis of the evidence, can be seen in [2017] FamCA 987.

The respective positions of the parties

By his amended application filed 29 January 2018, the father sought that he have sole parental responsibility for the children and that they live with him. He proposed supervised time by the mother for up to two hours per fortnight at the D Contact Centre. Anticipating that, at some stage, the mother’s time with the children had to move forward, he proposed an order:
[5]Upon the mother, at the mother’s cost, providing evidence in the form of a negative hair follicle drug test indicating that she has not ingested illegal drugs for a period of six months the mother and the father will engage a family dispute resolution practitioner to prepare a signed parenting plan regarding the mother’s spend time arrangements with the children with the cost of such mediation being divided equally between the parents (as per the original).
The father also sought an order that the mother be restrained by injunction from ingesting alcohol or drugs save for legal medication prescribed by a doctor. Albeit pointless from an enforcement point of view, there is foundation for his concern which will be apparent from what follows.
In the witness box, the father changed his position to acknowledge that supervised time at the contact centre was probably pointless. First, the child B had been told by the contact centre that if he was uncomfortable being there, he could leave. As will be seen from some of the explanation below, B is resistant in seeing his mother. The obvious problem however arises that if an order was made for B to attend every fortnight, it would not take much for the situation to explode. More importantly, how could the court be satisfied that it is in the best interests of a child (particularly of B’s age) to force him to attend every fortnight to go through a ritual of demanding permission from the contact centre to leave? The father thought that was probable and I have to agree that the evidence supports that conclusion.
In relation to the child C, the father’s evidence was that since 30 November 2017, the mother having had no contact with C at all, the child has settled at home and at school and now no longer needs to be restrained from leaving the home by a series of security measures. The father contemplated what might happen if C saw her brother leaving the contact centre or was upset about the fact that she wanted to be with her mother. The latter had been her clear desire up until the orders in late 2017. In his view, and I agree entirely, the prospect of a visitation order destabilising C, without any support mechanism to resolve the real issue between the parties, would not satisfy the court that it was in the best interests of the child.
In final address, the father resiled from his proposed orders relating to supervised time and was unable to think of any alternative system that would enable the relationship of the children and their mother to be maintained. The light at the end of the tunnel however lies in the fact that he agreed that a family therapy arrangement, something akin to what he mentioned in [5] of the orders above, would possibly work.
Although the mother had not filed any documentation as required by the November 2017 orders and the 2015 response document that had been filed on her behalf was well and truly outdated, I gave her the opportunity to tell the court what sort of order she would seek. She articulated it this way:
·Alternate weekends and two nights per week being Tuesday night and Thursday night and if not two nights then at least Thursday night;
·The weekends be from after school on Friday to the commencement of school on Monday;
·Time on the children’s birthdays and her birthday;
·Some time at Christmas;
·Time on Mother’s Day;
·The school holidays;
·Time on cousins’ birthdays;
·Time on grandparents’ birthdays;
·If the children were sick they were to be returned to her; and
·After school if C wanted to come, every night after school.
With some hesitancy, she then said that if necessary, the time could be supervised by her sister Bronwyn.
The mother then sought orders that effectively amounted to a concession that she needed a psychiatric assessment and that she would see a “mental health professional”. She also sought an order that the children be able to contact her and she them by mobile and that the father organise that. She sought an order that the family be restrained from making negative comments about her in front of the children.
Finally, the mother said that she wanted an order that the children be allowed to see her and her family whenever they wanted.
That descending order of preference is indicative of how the mother sees that everyone has got the facts wrong save for her. She said that she had been the sole carer of the children for years and that she was entitled to have the children and they have her.
The mother’s position ignores two things:
(a)There is an unequivocal assessment by psychiatrist Dr H that the mother suffers from borderline personality traits and has an untreated mood disorder; and
(b)She concedes use of methamphetamines (ice) to “numb her pain” although not of late, but all of that came to light after the experts had undertaken their assessments and almost by accident.
I reminded the mother when giving evidence that she had told me in November that a positive police test for drugs had been caused by a cold medication she had been given by a chemist and that that explanation did not sit comfortably with what she was now saying. She tried to indicate that they were not necessarily inconsistent but I do not believe her.
The Independent Children’s Lawyer filed an outline of case document with a string of proposed orders. The most significant proposal for the mother’s time with B and C was that it be under supervision at the contact centre up to four times per year but that the mother be otherwise able to communicate monthly in writing with the children and the father have the right to vet whatever she sent. Various other orders were made relating to injunctions.
In respect of the injunctions, the Independent Children’s Lawyer proposed that the mother be restrained from discussing the proceedings, questioning the children or communicating with them otherwise than in accordance with the orders. The immediate potential problem is that if the mother does not understand the diagnosis of Dr H and if she behaves as she did in the courtroom, it is hard to see how any injunctive order would have much effect. I would not make such orders.
Like the father, the Independent Children’s Lawyer proposed that ultimately, if the contact centre terminated the arrangement, the matter could come back to court. That too has little attraction and could even exacerbate the internecine war, which is inconsistent with the best interests’ principles.
Very generously, the Independent Children’s’ Lawyer proposed that she would remain in the proceedings for two years to assist in the implementation of any arrangements.

Conclusion

Of the three perspectives, the father’s was the most sensible if it could be implemented. The Independent Children’s Lawyer’s perspective, although functional, was unashamedly designed to enable the children to understand that they had a mother and to keep her image of them alive. It did nothing to address the underlying problem of the relationship between the children and their mother nor importantly, deal with what now are the two most pressing issues. They are the mother’s mental health status and her propensity to use drugs to “numb her pain of losing the children”.
It is sad to say that since 30 November, there has been no relationship between either child and the mother and even if the orders then made had been able to be implemented, I suspect they would not have been successful for the reasons I have set out above in rejecting the father’s proposal of fortnightly supervised time. The good news coming out of the same period is that the children have settled in the father’s home, have a very close relationship now with each other and have settled back into school and at least on their 2017 performance, had done well from the father’s perspective.
Whilst the mother was critical of the fact that she had been excluded from the lives of the children, she pointed to the fact that C had wanted to write to her at Christmas and also that she and her family had tried to make contact arrangements with the father. The father acknowledged that the school had contacted him about the Christmas message and had said that there were no problems about it from his perspective. The mother conceded that she had not had first-hand knowledge of what had gone on but that it had been done through an intermediary. In relation to contact, the maternal grandmother had endeavoured to make some arrangements but the father had rejected them. Two important points need to be made about that issue. First, I made clear in the November reasons to which I have already referred that to the extent that the mother’s family wanted to be involved, they could make the necessary application but they have not done so. Secondly, the mother’s family had previously been supervisors under court orders and according to the father, had failed to fulfil their obligations. There was therefore an understandable basis for the father to reject any overtures made directly to him.

The way forward

A parenting order can only be made by the court exercising the judicial power of the Commonwealth if it is satisfied that it is in the best interest of the children to make that order. Section 65D of the Family Law Act 1975 (Cth) (“The Act”) makes reference to the court making such order as it considers proper. Section 60CA of the Act requires the court to be satisfied that any order that it does make it in the best interests of the children. The way to determine best interests is set out in s 60CC. These are matters that all need to be contemplated after examining the evidence.

The litigation history

It is trite to say that delays in court determinations of parenting cases can exacerbate the problem but I am perplexed about the mother’s assertion which seems to particularly arise from the following statement she made to Dr H. She said in describing that litigation background that she attended the “first Hearing” in November 2015. Dr H recorded the following:
She still remembers the Orders. “I was bawling. The Lawyer made me sign it. I knew that [C] wouldn’t cope with five days a week with her father and my contact had to be supervised subject to [B’s] wishes. I could tell what was going to happen.” Since then, according to (the mother) contact between herself and [B] has been sporadic. She had no contact from August until November 2015. Then according to her, (the father) suddenly turned up with [B] prior to the Court case on 6 November 2015 with [B]. “He’s a piece of work”. Since June 2015 she’s had no weekends. She did have some contact over Christmas but since 27 January 2016, no contact has occurred.
I am unaware whether Dr H’s ultimate diagnosis was affected by the history provided by the mother. If the quote above is an indication, I have doubts about her accuracy.
The first hearing was not November 2015 but August 2015. She was represented by counsel. Consent orders were made which split the children. It is clear that by August 2015, there were problems between the mother and B. The following description recorded by Dr H might give some indication of the difficulty that the mother faced when the proceedings were before the court in August 2015:
In respect to the Intervention Order taken out by the Police involving her (the mother) said that (the father) had come to pick up [B]. She’d put a chain on the door that day. [B] was meant to be staying home. She was worried about him as he was running off and using his bike. She denied that she bit him. She does remember a struggle and him falling against a wall. She attended Court in June 2015. It went on and on. She pleaded guilty by plea bargaining and was charged eventually in October 2015.
Thus by the time the case was before the court in August, the police were prosecuting the mother for an incident that her police record (tendered in evidence (ICL 2)) shows as a serious criminal assault. Later in 2015, and by reference to the “plea bargaining”, the mother pleaded to the lowest charge of assault and was released on a good behaviour bond. The sequence of events about the plea bargain, and indeed the incident that gave rise to the charges, is really only relevant to the question of whether or not there was family violence but it is now clear that the subsequent events including those set out in the August 2015 orders explain that B has had a problem with his mother for some time. Over two years on, that relationship has not been mended which in turn leads to the obvious conclusion that putting 13 year old B in a supervised contact centre with a person to whom he bears antipathy, and with whom he has no present relationship, could not be in his best interests.
As the father said in evidence, he would get B to go to the contact centre because that is what you do when the court so orders but when contemplating what is likely to be achieved, the folly of such an order is readily apparent.
Notwithstanding the consent order in August 2015, the case came back before the Federal Circuit Court in November 2015 and this time, the mother was represented by different counsel. However, no change was made to the underlying structure of the orders save that the mother’s family were now to supervise the mother’s time.
The case came back again before the Federal Circuit Court in March 2016 and again, the mother was represented by the same counsel who had represented her in November 2015. Here, there was a consensual variation made to the supervision order but the underlying structure remained the same.

In March 2017, but this time without legal representation, the mother consented to orders which, with respect to the draftsperson, were equally problematic. The first order provided that the existing order was to continue “in full force and effect” save and except that in the event that B informed his mother that he wished to return, she was to notify the father of B’s wish and the father was to come and collect him. The order provided that if that occurred, four hours was to be substituted for the lost time on the Sunday of the weekend. B at that time was 12 years of age.
The March 2017 orders then provided, and again by consent of the parties, that therapeutic counselling was to be organised for B with a psychologist or clinical social worker or other counsellor recommended by the Independent Children’s Lawyer for the purposes of non-reportable therapeutic counselling. This order, although made with the mother’s consent, was criticized by her. The person who ultimately became the appointed therapist was Ms F. Ms F described herself as a clinical social worker and behavioural therapist. I refer to her evidence below.
Despite the order of March 2017, the mother was vociferously critical of Ms F for lacking qualifications and also being partisan. The partisanship seems to have arisen from the fact that she had been told by C that the father had been present during the sessions with Ms F. How that statement came about remained a mystery but in cross-examination, the father said that he was only present to answer questions and pay bills. Ms F’s affidavit was in the hands of the mother, although she had no recollection of receiving or reading it. I am satisfied that she had the affidavit because her sister, whom I am told is a psychologist, sat beside her throughout the hearing and confirmed that she had received and read it. It appeared that the sister was indeed critical of Ms F as not being appropriately qualified. I am not so convinced.
It is therefore perplexing to think that the person who has now established a relationship with the children albeit only over a modest number of sessions, should be removed and/or not seen as the appropriate person to undertake the assessment of what is clearly needed to establish a relationship at least between B and the mother and most likely, the boundaries of any relationship between C and her mother as well.
In April 2017, the matter came back before the Federal Circuit Court and that court reinforced its order relating to the therapist by directing that the Independent Children’s Lawyer provide her with the orders of the court along with the report of psychiatrist Dr H and family report writer Ms G.
Nothing in the evidence indicates that by the middle of 2017, the mother was objecting to the involvement of Ms F.
On 2 May 2017, the proceedings were transferred to this court. That occurred after the court ordered with the consent of all parties:
[1]The mother do all such acts and things as may be necessary to confer with and obtain treatment from a psychiatrist as is recommended by her general medical practitioner, and if necessary, in consultation with the Independent Children’s Lawyer.
That particular order in May 2017 has significance. As best I could ascertain from the mother, she not only disputes the diagnosis of Dr H but is still waiting ten months later for this conference with, and treatment from, a psychiatrist recommended by her doctor. It was abundantly clear to the mother in May 2017 that the arrangement in relation to the children was not satisfactory and that she had been diagnosed by Dr H but had also been the subject of scrutiny from family report writer G about her mental health. Ten months having gone by indicates either that she has done nothing to advance the resolution of the difficulties or alternatively, is suffering a mental illness such that she is unable to do so. If it is the latter, I find it perplexing because in November 2017, I observed that if her family desired to be involved in the children’s lives and the father was not prepared to agree, they could make the necessary application. As I have earlier mentioned, the mother’s sister was said to be a psychologist and sat with her as a “McKenzie Friend” throughout the hearing. Indeed, the mother asked whether her sister could speak for her, an application I refused on the basis that she was not appropriately qualified.
The May 2017 hearing followed immediately after the release of a report by Regulation 7 family consultant G who, by profession, is a social worker but who has qualifications in psychology and research. In her report to the court released immediately prior to the orders of 2 May 2017 and in the context of what the problem was with both B and C, Ms G said:
[18](The father) said that [B’s] relationship with (the mother) went downhill and over time he would run away to the paternal grandparents’ place; that he would take him back and text (the mother) and she would pick [B] up; then [B] would just run away and disappear. [C] would spend time with (the father) but there were always excuses why she did not spend the whole of the weekend with him.
Ms G observed the mother was difficult to focus in interview. That was consistent with what I saw not only in the court room but in the witness box. In fairness to the mother, the G interview was difficult because she had not allowed herself sufficient time to fulfil the needs of Ms G and accordingly, a subsequent unsatisfactory telephone interview took place. However, Ms G was able to interview the children.
In her report to the court, Ms G said that the father was meeting the day to day emotional needs of B as well as his intellectual and practical needs but the father needed to make sure that he disciplined B. Significantly, Ms G said:
[98]It is my view that while (the mother) tries hard to meet the needs of [C], including her day to day emotional needs, intellectual needs and practical needs, there remains a concern that (the mother’s) mental health (given her psychiatric assessment) may prevent her from providing [C] with a stable environment unless she seeks psychiatric assessment and treatment.
At the hearing on 2 May 2017, both mother and father were without legal representation but the Independent Children’s Lawyer was represented. Because of the evidence of Ms G, the mother’s referral to a psychiatrist was not an unfounded issue.

Dr H’s view

Dr H diagnosed borderline personality traits but did not say which specific traits. He did not diagnose borderline personality disorder. He did diagnose that the mother suffers from an untreated mood disorder. His evidence was not challenged. He did make a strong recommendation that the mother be referred to a psychiatrist for “assessment and treatment” but it remains unclear what assessment and what treatment was being contemplated. It may be for example that some form of cognitive behavioural therapy and/or mood stabilising medications which would require medical intervention could then (if not immediately) lead to behavioural therapy which presumably could be undertaken by any number of different health professionals. The evidence of Ms F shows that she holds graduate diplomas in psychological studies and is an accredited mental health social worker and family consultant. She describes her usual occupation as “behavioural therapist”. In those circumstances, I am unsure why there would be a need to delay any process of reintroduction of the children to their mother which it seems, on the evidence of Ms F, has already begun.
To the extent that this analysis is correct, the first approach should be to Ms F to see whether she is qualified to do family therapy and or cognitive behavioural therapy. If she is, the mother’s reservations as expressed in the hearing fade away. It may be, and I cannot make any finding because of the paucity of evidence, the resistance of the mother to such a course of action and indeed, the involvement of someone like Ms F, could be as a result of her mood disorder as diagnosed by Dr H.

The evidence of Ms G

The evidence in this case of the parties was entirely unhelpful save that at least the father endeavoured to explain what had happened and what he proposed to do. The mother provided no assistance. However, what the parties told Ms G becomes the fundamental basis upon which the November 2017 orders were made and which I consider now remain largely in the best interests of the children for the future.
At [51], Ms G reported that the mother confirmed that B had received a mark on his arm in the altercation but she explained that was from him “thrashing around”. The minimisation of that incident by the mother both to Ms G and to Dr H is disconcerting. She made the same observation again in these proceedings. It cannot be ignored that whether or not a plea bargain followed, it was an assault and a magistrate found so. If it was an accident or B had contributed to his own injury, why was there a concession that it was an assault and, more importantly, why did the magistrate accepted that it was such. It is relevant that the mother had legal representation at that time.
By her April 2017 report, Ms G described B as indicating positive attributes about this father and nothing negative. As for his mother, he could not think of any good things to say but much of what he criticised her for might be seen as insignificant. His main criticism seemed to be that she did things to make herself happy rather than him.
Ms G canvassed the question of where B wanted to live. He said that he wanted to live with his father but go to his mother’s at his election but when the question of him living with his mother was raised, he strongly indicated that he would not live there. Ms G explained to him that children were usually not able to make decisions for themselves about where they lived until they turned 14 “maybe 15” and B found that difficult to comprehend.
Ms G said that C described her mother as nice and caring and there was nothing really negative. In terms of living with her mother she said that she would be very happy but if forced to live with her father she would be very upset. This is unchallenged evidence.
In the context of that assessment, the evidence of Ms F becomes quite important.

The view of Ms F

Ms F said that her “brief” was “to set about providing support for both of the children to assist them in feeling more comfortable together, feeling safe in either of their parents’ care…and for [B] to increase his time with his mother”.
Ms F said that she set up a plan consistent with the school’s “fire drill” so that it could be implemented in both homes and used if there were ongoing physical altercations between family members. She said B liked the idea as he felt empowered should his mother refuse to allow him to leave. It was also to contribute to building the relationship between the children.
Much of this evidence related to the period prior to November 2017. After C had been placed in her father’s care, she asked Ms F many questions about spending time with her mother and Ms F said she worked out strategies that could be shared with the mother. Since that time, although not referred to in the affidavit, a further two sessions have occurred and the father’s description is the only evidence I have to indicate that both children have settled well and are now very close. Significantly, there had been no running away, distress or unsettled behaviour.
It is therefore important to recognise that what Ms G was considering in April 2017 has changed into a more settled environment which the court has to be careful about disturbing.
There can be little doubt about B’s current position relating to his mother. When Ms G put them together, B moved away and it was only after relaxing and beginning to play games with his mother that B was physically close and comfortable with her. Ms G described the interactions as positive.
Ms G also recorded C as saying that she sometimes found B annoying and yelling at her but that is now inconsistent with the nature of the relationship as described by the father.

The Department of Health and Human Services

In October 2017, the Department responded to a subpoena and it was at this point that they expressed concerns about the mother testing positive to drugs after her car accident. The Department’s view was that they were concerned about the risk of harm to C but also curiously, the mother’s association with drug users. The Department described discussions with C including that people were “coming and going” and taking her food. I refer to that at paragraph [49] of my reasons in [2017] FamCA 987. It was the Department’s view that if the mother failed drug screens and failed to seek medical help for her mental health issues, their concerns would arise.

Conclusion as to the facts

The mother said that she acknowledged she had to get mental health assistance and I have already mentioned that ten months has gone by since that issue was raised and still nothing has happened. It is disconcerting that she has the support of a number of family members one of whom is said to be a psychologist but none of this has been addressed. It is disconcerting that Ms G was troubled about the mother’s lack of activity. It is also concerning that the issue of the high level of conflict between the parents has not been addressed. It is unsurprising that the children were emotionally affected to the point that they aligned themselves to the parent with whom they lived and were seen as rejecting the other. That of course has now changed with the change of residence and there is no indication that C has not settled appropriately.
The father said that he did not discuss the mother in the presence of the children but he must see there is importance for both children if the mother overcomes all of the problems associated with the mental health concerns and drug usage. If that does not happen, Ms G considered there was a possibility that it will be too late to change and the children will be entrenched in a position of opposition to their mother.
I accept the evidence of Ms G that the mother has little capacity to understand the problems of her relationship with B and little or no insight into B’s emotional well-being. I accept the observation of Ms G that such an assessment raises concerns as to how the mother understands her own relationship with C particularly now that C has been absent from her mother’s life for three months. The April report of Ms G warned the mother that if the psychiatrist was not attended, “it may be” C should live with her father. That is what has now happened. The foundation for the potential move in April 2017, as suggested by Ms G, was that C was moving into the vulnerable stages of development and if she remained in her mother’s care, and I find that includes contact, without the mother having appropriate psychiatric treatment, then C:
May become seriously anxious and may even start to take responsibility for (the mother’s) well-being.
I accept the evidence of Ms G and I find it very difficult to understand why the mother has not done something about it.
I have no confidence that the mother will do anything about the two fundamental problems of drugs and mental health. In respect of the former, the mother maintains that she has not used drugs but there is no evidence from her at all to that effect. There is no evidence to indicate how she would foresee the relationship between the father and C being enhanced. If I simply allowed C to return to her mother as she proposed and/or even had the sort of contact that the mother considered appropriate, the conclusion of Ms G to which I have just referred, must be seen as a possibility. In my view, that risk is too great now that the opportunity to stabilise both children has occurred and albeit it is early days, there are signs that the children have settled into the home, are happy with each other and are now doing well at school. That could not be said of the period of time that either child was being cared for by their respective parents around the start of 2017. At that time, the mother was not getting C to school and certainly not encouraging a relationship with the father and similarly, there were the problems of the relationship between B and his mother which I accept were exacerbated by the father’s lack of boundaries.
The absence of action to repair the damage done to the relationships between the two children and their mother does not seem to me to be justified. However, having regard to the evidence of Dr H, the first step must be an assessment by a psychiatrist aware of my concerns as well as the obvious objective assessment of the mother.
In relation to the drug issue, I do not resile from my criticisms of the mother but am unaware of the connection between her drug usage and the psychiatric diagnosis of Dr H. Much emphasis was placed particularly by the father on the detection of drugs using the hair follicle testing system but all that would appear to me to do (in the absence of any expert evidence) is to identify that drugs have been used in the previous three months. Various figures were bandied around by both parties but in the absence of specific evidence, my concern is whether or not the mother would, at the relevant time, be drug-affected to the point that the children were at risk in her care or that the potential therapy program could be thwarted. I do not see the efficacy of making some drug analysis test a condition precedent for the commencement of the therapy program. However, because of my concern about the mother’s drug usage, the therapist ought to have the opportunity to insist upon that analysis if he or she considers that it may impact upon the cognitive behavioural therapy. I would leave that issue entirely to the therapist but fail to see how hair follicle testing is any more efficacious in this case than urinalysis.

Orders?

In my view, the orders proposed by the mother would simply see a reversion to the problems that ended in November 2017. If I made orders in terms of those proposed by the Independent Children’s Lawyer, whilst C would come to know and remember her mother, unless the father was encouraging of the relationship, it is conceivable that C will take on the responsibility of worrying about her mother and that is entirely unsatisfactory for the reasons that Ms G explained. If I accepted the initial views of the father, I would be putting the children through situations on a fortnightly basis which were doomed to fail and which in reality, face opposition from at least B. How that would impact upon B’s relationship with C now that they are successfully close to each other again, remains unknown and I am not prepared to speculate now that things have settled.
There is however, no basis here to make the orders for both children to spend time with their mother until the resolution of her two problems. The impact of the “problems” has to be considered on the relationships of the children with their mother, each other and also the father.
Section 65D of the Act empowers the court to make such parenting order as it considers proper. Section 64B provides that the court can make a number of orders if deemed to be proper and one of those is any aspect of the care, welfare or development of the children. That is the process by which the objects of the Act, to which I now turn, may possibly be met. Section 60B provides that the objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Examining each of those objects in turn provides a guide as to how the best interest principles can also be contemplated. How does the court ensure that the children benefit from having a meaningful involvement with their parents in their lives if the nature of the relationship of each of the children is so different? What is the point of forcing that relationship to occur if it is destructive of a relationship with their parents? If C runs away and does not attend school or see her father, she cannot have a meaningful relationship with him. I do not know what evidence the mother would provide about how she would establish and reinforce a relationship between C and her father because she provided none. However, when I gave her the opportunity to give viva voce evidence, she was highly critical of the father. Her criticisms of the father are easy to make but there is nothing in the evidence to indicate that there is any foundation for those criticisms.
Similarly, the evidence of the father would suggest that he does not press B to have a relationship with his mother and it may be that it is now too late. The father said that he would ensure that B attended the contact centre but in the next breath indicated that if B did not want to stay, he would have his wish. That is interesting in the context of the discussion between B and Ms G in which she said that children aged 14 or 15 are the ones who normally start to make decisions about their wishes. B is not in that category at this stage but the father was unable to suggest any other way that a formal relationship with the mother and B could be established.
In my view, the law has little chance of working out a positive solution for these children without the assistance of social scientists. That was obviously contemplated by the Federal Circuit Court in early 2017 but it was never implemented to the extent of involving both of the parents. Ms F seems to be a person who has the opportunity to counsel the children but I would have thought that for any relationship between the parents to be successful, much more work has to be done. It may be that Ms F is the appropriate person and I intend that the Independent Children’s Lawyer have an opportunity to canvass that issue with Ms F before making a decision as to who the appropriate person is to undertake a family therapy approach.
Section 69ZN of the Act requires the court to consider the needs of the children in the conduct of the proceedings and the impact of those proceedings. It was for that reason that I limited the role of the mother to try and have her focus on how the problem could be resolved as distinct from whose fault it was that it had arisen.
One order that I consider can be made arising out of the welfare provision of

s 64B is the use of family counselling referred to in s 13C(1) as interpreted from the definition in s 10B. In my view, for the purposes of endeavouring to resolve what is clearly a social science problem, but one that does not fit within the normal legal constraints, it is the appropriate order to make here.
Section 64B(2)(i) seems to me to be the only power to order the parties to attend some sort of therapeutic program. Section 11E(1)(b) curiously says that if the court has that power to order a person to attend, it may before exercising that power, seek the advice of a family consultant but in any event, it must, before exercising the power, consider the advice. In my view, there is no need here for me to seek that advice because the evidence of Dr H and Ms G indicates there is very little alternative to some form of relationship reconstruction through a professional program. In addition, the range of possibilities of orders in s 64B to which I have already referred not to mention the position initially proposed by both the father and the Independent Children’s Lawyer indicates that to achieve the objectives of the legislation for the sake of B and C, something out of the normal legal construct has to be found. In my view therefore the welfare and development of these children requires significant input. That in turn leads to the question of who should undertake the task and what control over the process such a person should have. The court ultimately retains the control because if the relationship between one parent and the therapist breaks down or alternatively, a parent declines to implement a parenting strategy from such a program for no apparent good reason, an application can always be made to the court to resolve the impasse.
At all times, the parties have the potential to enter into a parenting plan within the meaning of s 63C of the Act. Section 63B shows the legislature’s intent in encouraging parents to take that approach. It reads:
Parents encouraged to reach agreement
The parents of a child are encouraged:
(a)to agree about matters concerning the child; and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.
Thus, if the parents go through this process and then do not reach agreement, the end result will be a court determination.
That particular approach is reinforced by s 60CA which provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. In other words, the mother’s interests can be considered but ultimately, it is what is best for the children that must be the primary focus of the court’s attention. If it means that the mother is hurt, as she would describe it by not having a relationship with her children, that is unfortunate but ultimately, the court has to decide what is best for the children. In my view, the only way that a relationship can be enhanced and supported between the parents and the children is if they all work collectively and cooperatively in a therapeutic way.
Section 60CC(1) provides that in determining the best interests of the children, the court must consider the matters set out in s 60CC(2) and (3).
Section 60CC(2) reinforces what has already been said in s 60B namely that there should be a benefit for the children having a meaningful relationship with both parents. At the moment, it is clear that there is no benefit to the children in having a relationship with their mother in circumstances of the type I have described above. C may fall into the unfortunate position of that described by Ms G and B is certainly resistant. In my view, this approach needs a professional to decide when and how the relationship is to be repaired.
Section 60CC(2) also requires the court to consider as a primary consideration the need to protect the children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. All of those issues are relevant here. I have the evidence of the mother’s concession that B was assaulted. I do not accept that that was not family violence. I have the evidence that C is exposed to problems when she was in her mother’s household not only of having a number of men “coming and going” as she described it, but also that she was not being properly looked after notwithstanding what Ms G thought at the time. I also have the unchallenged evidence that in a dangerous way, C ran away from her father prior to the change of the orders in November 2017. It is important therefore that any orders take into account that those sorts of problems have to be avoided at all cost.
Section 60CC(3) requires the court to consider a number of additional considerations. I deal with them sequentially.
I have taken into account the views of B but the objective evidence of Ms G would suggest that given an appropriate environment, B might be interested in having a relationship other than that which the mother currently contemplates. C clearly does want to have some form of relationship with her mother but is now compliant and seems to not be stressed by the absence of her mother. That may be a temporary situation but there is no objective evidence to indicate that the child is distressed. In my view, the views of B should be given some weight but I do not know the level of maturity of C such that I could give weight to her views about what she wants.
The nature of the relationship between each of the children and their respective parents is now only clear from the evidence of the father. The mother gave no such evidence including as to what had been happening from the start of 2017. I accept that there is a close and loving relationship with both children and the father and I remain uncertain about the nature of the relationship between C and her mother.
It is also important to acknowledge that the mother espoused that it was the right of the child to have time with her but of course, that depends entirely upon the court being satisfied that it is in the child’s best interest. There is no evidence to indicate that the child is missing her mother nor is there any indication that the mother can care for the emotional needs of either child. On the basis of those matters, one would have to presume that as the children have settled well into the environment with their father there is no basis to change it. He is meeting all of their needs.
An issue is the attitude to the responsibilities of parenthood as shown by the evidence. I do not accept that the mother was justified in using drugs of the nature of “Ice” for the purposes of numbing her pain. This was going on well before November 2017 and particularly after Ms G gave her report in April 2017. The evidence of the Department of Human Services about their observations of C and the household are very concerning but I find that the mother was not responsible in relation to the care of C. That needs to change.
In respect of family violence, I am satisfied that there is no evidence that the father has undertaken anything that fits within the definition of family violence towards the mother or the children. I have made findings earlier in respect of the mother’s approach to B.
The court is required to consider whether it would be preferable to make an order that would least likely lead to further proceedings. These children have been the subject of litigation since their parents separated almost ten years ago. As I have already said, since 2015, there have been innumerable hearings none of which have resolved the problem. It seems likely now that if the mother can establish to the satisfaction of a social scientist who hopefully will have therapy qualifications, something can start fairly quickly. If the mother does not solve the problems of her psychiatric state and her drug usage and the onus in respect of both should be on her, the children should not be subjected to the sorts of things that were going on between 2015 and 2017.
It is fundamental that both parents encourage a relationship with the other but in the father’s case, it is hard to criticise him for his laissez faire attitude in circumstances where the mother has done nothing to try and resolve the problems herself. The mother for her part has adopted a strident approach to criticism of the father and indeed of the court system but has done nothing to ameliorate the concerns of the court about her need to solve her problems. Without those being solved, the potential for a relationship between the mother and the children will continue to be fraught with difficulty.
In my view, therefore, the only option for the court is to deal with that issue on the basis that much is left to a family therapist to try and repair the relationship and advance to the point where the children and both parents are comfortable with that professional’s work.
In the meantime, there are other issues which the mother did not challenge. I do not intend to deal with the matters under s 61DA of the Act other than to say that although the mother raised no evidence about it, I am satisfied that the presumption set out in that section is rebutted by virtue of the family violence that was perpetrated by her on B. That alleviates the necessity for the court to consider the matters set out in s 65DAA.
The orders at the start of these reasons are therefore in the best interests of the children.
The mother did not address questions of parental responsibility but I agree with the submission of the Independent Children’s Lawyer that on the concession that she made that there is no communication with the father and that the father does not respond to her, there is little prospect of any decision about major issues affecting the children being made jointly. The father’s position is that he does not mention the mother at all in his household and that is most unfortunate for the sake of the children however that problem may very well be resolved in the future by the orders that I have proposed.
In my view, the only sensible order to make at this stage associated with parental responsibility is that the father make the decisions on the basis that until such time as the mother shows that she can consider the best interests of the children first, she deals with her acts of irresponsibility in using drugs and in not getting her mental health sorted out, the order for the father to have sole parental responsibility will continue.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 March 2018.

Associate:

Date:

[2018] FamCA 180

26 March 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness