VERRELL & TEAGUE (No.3)
[2019] FCCA 1613
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERRELL & TEAGUE (No.3) | [2019] FCCA 1613 |
| Catchwords: FAMILY LAW – Parenting – allegations of risk – mother’s mental health – delusional disorder – risk to child – whether or not mother’s time should be supervised. |
| Legislation: Children, Youth and Families Act 2005 (Vic), s.169(1) Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 91B. |
| Cases cited: Champness and Hanson [2009] FamCAFC 96 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR VERRELL |
| Respondent: | MS TEAGUE |
| File Number: | MLC 527 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 8 and 9 May 2019 |
| Date of Last Submission: | 9 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| The Applicant appearing in person |
| The Respondent appearing in person |
| Counsel for the Independent Children's Lawyer: | Mr McLeod |
| Solicitors for the Independent Children's Lawyer: | Ebejer Lawyers |
ORDERS
That the father have sole parental responsibility for the child [X] born … 2009 (“[X]”).
That [X] live with the father.
That [X] spend supervised time and communicate with the mother as can be accommodated by the Suburb A CommUnity+ Contact Centre or such other supervised contact service as agreed between the parties for a minimum of six times per year.
The mother be responsible for all costs associated with the time spent pursuant to order 3 herein.
The father arrange for [X] to spend time with her sibling group on a minimum of four times per year.
That each parent keep the other parent advised of their address, mobile telephone numbers and email address within 24 hours of any such change.
That the mother be permitted to liaise with [X]’s school to obtain information about [X]’s progress and obtain copies of reports and other documents ordinarily provided to parents and that these orders shall act as an authority for same.
That both parties be permitted to attend any school or extra-curricular activity to which parents are ordinarily invited including but not limited to parent teacher interviews, school concerts, sporting events and the like.
That the parties advise the other of any of [X]’s medical appointments and any changes to same.
That both parties notify each other forthwith and in any case within 24 hours of any serious illness or injury to the child and immediately in the case of any hospitalisation to [X].
That both parties be restrained from:
(a)Denigrating the other or the other’s family in the presence or hearing of [X], or bringing [X] into contact with another person who is.
(b)Discussing parenting disputes and/or issues with or in the presence of [X].
(c)Passing messages through [X].
(d)Involving [X] in any form of dispute between the parties or otherwise.
That the Independent Children’s Lawyer be discharged.
NOTATION
A.Any further application by the mother for further time with [X] shall include an affidavit evidencing that:
(a)She has attended parent counselling;
(b)She has developed the capacity to support [X] in her relationship with her father; and
(c)Her drug usage particularly with respect to marijuana.
IT IS NOTED that publication of this judgment under the pseudonym Verrell & Teague (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 527 of 2016
| MR VERRELL |
Applicant
And
| MS TEAGUE |
Respondent
REASONS FOR JUDGMENT
This is a sad case. I am mindful that the mother will likely be unable to accept the result.
The parties have been in and out of this Court since the mother filed an initiating application on 22 January 2016. There have been two sets of final consent orders made on 19 June 2017, and 26 April 2018. The father commenced the current set of proceedings on 17 October 2018.
The parties have one daughter together, [X], who was born on … 2009. Both argue that [X] should live in their care and spend supervised time with the other.
The mother has been represented by three law firms and at times has been unrepresented.
Both parents represented themselves at the trial. Neither parent filed any trial material.
In those circumstances I allowed the parties to rely on all the affidavits they filed after February 2017. Although some of these affidavits were from the previous set of proceedings, this is appropriate because the family report from the previous proceedings and the previous psychiatric assessment of the mother form part of the evidence before the Court in this trial.
The affidavits of the mother are:
a)Affidavit of Ms Teague filed 2 June 2017;
b)Affidavit of Ms Teague filed 10 November 2017;
c)Affidavit of Ms Teague filed 13 February 2018;
d)Affidavit of Ms Teague filed 9 March 2018;
e)Affidavit of Ms Teague filed 27 July 2018;
f)Amended affidavit of Ms Teague filed 30 July 2018;
g)Affidavit of Ms Teague filed 3 October 2018;
h)Affidavit of Ms Teague filed 11 October 2018.
The mother’s affidavits contain consistent themes of the father being violent, taking drugs, drinking alcohol to excess, being inconsistent with spend time arrangements and [X] being unsafe in the father’s care.
The mother takes issue with the report writer stating in the first report that the mother did not have a working relationship with [X]’s school. The mother expressed concerns about [X] being continuously late to school.
In her affidavit filed on 2 June 2017 the mother denies the father’s allegations that she is addicted to marijuana. She says that she used to smoke two joints a day but has recently decided to stop. She said she is aware that it reduces her concentration and that it is not in [X]’s best interests for her to use it. She said she used it recreationally.
In her affidavit filed 10 November 2017 the mother says she has been diagnosed with Delusional Disorder and that at times this has affected her judgment in the past. The mother says that her mental health is currently stable and she is taking her medication.
The mother raises concerns that [X] tells her the father always yells at her. The mother has withheld [X] from the father on several occasions including in August 2015, September 2017 and June 2018.
The mother says that on 1 November 2017 the father’s partner Ms C (formerly Ms C) attended her house to serve her with the father’s recovery application. She says that the father’s partner screamed at her and was abusive and that [X] was in the house crying. In earlier affidavits the mother had been positive about Ms C. It is apparent that any working relationship they may have had previously has completely broken down. The mother says that she did not send [X] to school whilst in her care as she was concerned that the father would attend school and forcibly take [X]. She says that [X] was afraid to return to her father’s care and is experiencing physical and emotional abuse at his home. [X] missed a month of school. The mother arranged for [X]’s teacher to provide some homework.
In the mother’s affidavit sworn and filed on 13 February 2018 she complains that the father has breached the orders as [X] has missed a lot of school. She says that [X] has been telling her that there are a lot of fights at her father’s home.
The mother also said she had arranged for [X] to see a psychologist and had not told the father about the first appointment as she did not want [X] to be manipulated by him. She said [X] was not made available to her that day and she had further discussions approaching the father about [X] having counselling at a Family Relationship Centre and also spoke about the counselling that she was receiving from a family violence counsellor.
The mother’s next affidavit was filed on 7 March 2018. In that affidavit she raised the issue of the father changing [X]’s school without consulting her. She referred to the school being further away and increasing her travel since she relies on public transport. She also expressed concern that the father changed [X]’s school in order to have a clean slate and avoid the Independent Children’s Lawyer (“ICL”) obtaining “critical information about [X], her progress, her support networks and other educational matters”. She also refers to the ICL’s correspondence advising the father that he was in breach of orders by changing [X]’s school without notice.
The mother’s next affidavit was filed on 27 July 2018. She expressed concerns about the father not complying with orders, not taking [X] to her scheduled appointments at the Royal Victoria Eye and Ear Hospital and arranging for [X] to attend counselling. She complained about being assaulted by the father’s partner, Ms C, on 25 June 2018 when she returned [X] to the father. She said she believes that Ms C’s violent behaviour towards her is an indication of the violent relationship between Ms C and the father. The mother said the father and Ms C denigrate her and gang up on her. She said she has become increasingly concerned that they denigrate her to [X] in an effort to turn [X] against her.
The next affidavit was filed on 30 July 2018 and in the first paragraph the mother seeks leave to amend the affidavit she filed on 27 July 2018 as she has become aware of some errors. Errors are not identified and upon comparing the two affidavits their contents are identical apart from seeking leave to correct errors.
The last affidavit the mother filed on 11 October 2018 was in support of her application to spend time supervised by her daughter Ms B. She says she refused to spend supervised time with [X] on the last occasion the matter was in Court because she felt that consenting to such an order would be making a concession that supervision is necessary. She says she is now prepared to accept supervised time on an interim basis so that she can see [X]. She does not believe supervision is necessary but acknowledges that it is the only way she will be able to see [X] pending the final hearing.
The affidavits of the father are:
a)Affidavit of Mr Verrell filed 1 May 2017;
b)Affidavit of Mr Verrell filed 23 October 2017;
c)Affidavit of Mr Verrell filed 2 July 2018;
d)Affidavit of Mr Verrell filed 17 October 2018.
The father has represented himself in all of the proceedings. His affidavits are brief. In his first affidavit filed 1 May 2017 he complains about the mother making contact with [X] difficult, the mother using marijuana and ice and the mother making false claims of family violence against him. He refers to [X] coming into his care in January 2012 when the mother was hospitalised with Delusional Disorder. He talks about the mother withholding [X] in August 2015. He talks about [X]’s care in 2015 onwards and proposes that [X] remain in his primary care and spend regular time with the mother.
The father’s next affidavit was filed on 23 October 2017. In that affidavit he complains that the mother is in breach of orders having stopped all communications between [X] and him and that she has been withholding [X] from school. He expresses concern about [X]’s welfare given the mother’s mental health issues and his concern that she is suffering a relapse.
The father’s next affidavit was filed on 2 July 2018. He says after the last time final orders were made on 26 April 2018 for the first few weeks things were amicable and that then the mother started messaging him consistently including when [X] was in her care and was becoming increasingly aggressive. The mother then withheld [X] and advised that she was refusing to return [X] to the father’s care.
The father says prior to that [X] would return upset from her mother’s house as her mother would relentlessly question her about his situation. The father said he was concerned enough to contact the ICL to express concerns about the mother keeping [X] up very late at night such that [X] would sleep during the day and was worried that the mother might harm herself and might take [X] interstate. He says this is the fourth time that the mother has refused to return [X] to his care.
The last affidavit the father filed was on 17 October 2018. He refers to [X]’s behaviour settling and her attitude changing to be positive since not seeing her mother. She now has a set bedtime routine and is living in a stable and happy home environment where she is thriving. He says that the mother has repeatedly shown that she does not have control over her mental health and that at times she has irrational thoughts which she imposes on [X], including being fearful of living in her own home. He refers to the mother making accusations against him which have been investigated and found to be false. He complains that the mother’s delusional state causes her to believe her own stories and that she pushes these ideas on to [X]. He talks about the mother’s inability to comply with orders, the withholding of [X] and also talks about the recovery of [X] involving the Australian Federal Police (“AFP”) being emotionally distressing for her. He also expresses concerns about the mother being fixated on taking [X] to doctors, eye specialists and psychologists. He admits that [X] is missing her sisters and brother but he is concerned about allowing them to have unsupervised time as he says they have shown that they are willing to help the mother breach orders.
The ICL relied on the family reports dated 13 February 2017 and 29 March 2019 and the psychiatric assessments of the parties conducted by Dr D dated 7 February 2017, 27 February 2019 and 21 March 2019.
I have delivered two interlocutory decisions in this matter, Teague & Verrell [2018] FCCA 1861 and Teague & Verrell (No.2) [2018] FCCA 3849, delivered on 5 July 2018 and 3 December 2018, respectively.
Background
The father was born on … 1977 and is 41 years old.
The mother was born on … 1972 and is 47 years old. The mother has four children from a previous relationship; Ms E born … 2001 aged 18 years; Ms B born … 1999 aged 20 years; Mr F, born … 1992 aged 26 years and Ms G, born … 1990 aged 28 years.
The parties met in 2004. They had a casual relationship until 2015. They did not live together.
[X] has lived primarily in the father’s care since she was two, after the mother had a psychotic episode and was hospitalised. The Department of Health and Human Services (“the Department”) became involved in 2011.
In 2014 [X] started spending time in both parents’ households in a shared care arrangement until the mother applied for an intervention order against the father and stopped the father’s time in August 2015.
[X] had little contact with the father in the following months until the father attended the mother’s home and withheld [X] on 26 December 2015.
The mother commenced proceedings seeking orders that [X] be returned to her care alleging that the father was using drugs including ice and marijuana and was violent, including being violent towards [X].
At the first return date before me on 22 February 2016 the mother was represented. The father was not. The parties entered into consent orders for [X] to live with the father and to spend supervised time with the mother. I also appointed an ICL.
The matter came before me again for an interim hearing on 26 July 2016. The mother made further allegations against the father. She referred to seeing bruising on [X]’s back on 27 February 2016 and taking her to Suburb H Hospital to be examined. The father had not filed material by that stage. The ICL expressed concerns about both parents and was hindered by the parents not providing her with information. I ordered a family report and listed the matter for trial and also ordered the mother to undertake a psychiatric assessment.
Throughout 2016 the mother continued to have supervised time which progressed to include overnights on alternate weekends.
The first family report was released on 13 February 2017. At the time of the interviews the father had not filed any material and the psychiatric assessment of the mother had not been completed. I will refer to the first family report in more detail below.
At the trial on 19 June 2017 the mother and ICL were represented by counsel. The father appeared for himself. They entered into consent orders which provided for [X] to live with the father and spend substantial and significant time with the mother. The father had the ability to require the mother’s time to be supervised again if the mother’s mental health deteriorated. Order 13 of the consent order reads as follows:
“Should the mother's mental health deteriorate and the father considers that [X] will not be safe in the mother's care, the mother's time shall revert to supervised time with the supervisors being mutually agreed upon and to revert to unsupervised upon a provision of psychological evidence from the mother that her mental health will not impact on her ability to parent [X].”
A notation was made that if the father was to activate the provisions in Order 13, he was to notify the mother by way of text that he considered that her mental health had declined and that he would be changing the mother's time to supervised time.
On 23 October 2017 the father filed an application in a case for a recovery order. He said that the mother had ceased his time and was not sending [X] to school and he was worried about the mother’s mental health.
The father’s application was returnable on 13 November 2017. The mother was represented by a different firm of lawyers. I ordered an urgent s.11F assessment. At that stage [X] had not been to school for a month. The mother raised various concerns about the father using drugs again and [X] making complaints about not being able to get her father out of bed and the father yelling at her.
The mother deposed [X] being interviewed by the Suburb H Police SOCIT[1] Unit on 29 September 2017 and also said that the Department were aware that [X] was in her care and had not removed her.
[1] Sexual Offences and Child Abuse Investigation Team Victoria Police.
At the s.11F assessment both parents wanted [X] to live with them and spend supervised time with the other parent. The mother raised various concerns about the adequacy of the father’s care of [X].
On 14 November 2017 the family consultant Ms J interviewed [X]. Ms J stated that [X] was initially nervous. She formed the view that [X] needed to return to her routine and school where she could connect with her friends and her extracurricular activities. She said [X] had a loving relationship with both parents. I ordered that the final orders remain in full force and effect and re-appointed the ICL.
The mother filed an application in a case and contravention application on 13 February 2018. On 20 February 2018 the parties agreed to a variation of the orders which included both parents being required to ensure that [X] attend school on time and attended school each school day unless they had a medical certificate.
The father did not attend the next court date on 6 April 2018. On that occasion the mother and the ICL’s Counsels expressed concern that the father had unilaterally changed [X]’s school. The matter came before me again on 26 April 2018. The parties entered into final consent orders again. They agreed to vary the final 19 June 2017 orders with respect to parental responsibility removing the veto power the father had had with respect to parental responsibility. Orders were also made restraining the parties from changing [X]’s current school. The spend time with orders were also varied. The supervision order set out above remained in the orders. The ICL was noted to remain in the matter for 12 months and would have the ability to require the parents to undergo random drug screens during that period. The parents were to arrange for counselling for [X] and to keep the ICL informed about that counselling. In the event the father wished to invoke the supervision order he was to notify the ICL first. On the basis of those orders the matter resolved on a final basis for the second time.
On 2 July 2018 the father issued an urgent application in a case seeking a recovery order for [X]. That application came before me on 5 July 2018. I refer to the ex tempore reasons I gave on that day. The mother appeared for herself and her presentation was concerning. The mother was extremely distressed and had difficulty containing herself. She complained that the ICL and the Court have not taken her concerns seriously. She made allegations of sexual abuse against the father in addition to other allegations.
The ICL had been in contact with both parents in the weeks leading up to the court date and had also made her own notification to the Department. At that stage the Department was undertaking an investigation.
I indicated to the mother that I would be making an order for [X] to return to the father’s care and attempted to make arrangements for [X] to be brought to Court so that she could see a family consultant and for the family consultant to conduct a changeover. The mother refused to cooperate with that process. I put the mother on notice very clearly that if she did not bring [X] to Court it would be necessary for a recovery order to be issued and for the police to become involved and recover [X]. The mother left the courtroom before the proceedings finished. I issued a recovery order and suspended the mother’s time. The police did attend and remove [X] from her mother’s care.
When the matter next came before me on 10 August 2018 the mother would not agree to her time being supervised. Her time remained suspended.
The mother filed an application in a case on 11 October 2018 seeking that she have time supervised by her daughter Ms B and that when Ms B was not available, the mother’s stepfather Mr K or her adult son Mr F would be available to supervise. Ms B filed an affidavit in support of that application. The mother sought supervised time on the basis that she now understood that this would be the only basis upon which she could see [X] until the trial where the allegations of risk would be tested. The father expressed concern about Ms B’s ability to step in and control the mother if necessary and said there had been difficulties previously when supervision was undertaken by family members.
The ICL opposed the mother’s application and submitted that the mother’s time needed to be professionally supervised. She had met with [X] the previous week who unsurprisingly had been distressed by being recovered by the police. The ICL was primarily concerned about the mother withholding [X] again.
The mother opposed to having her time supervised at a contact centre, expressing concern that this would give [X] the message that she is unsafe. It is the mother’s case that it is the father who is unsafe.
As explained in my ex tempore reasons given on 3 December 2018, I was not satisfied that the risk to [X] could be ameliorated by the mother having time supervised by her daughter rather than professionally supervised.
The second family report was released on 1 April 2019. At the time of the interviews [X] had not seen her mother for several months. [X] was due to see her mother at the contact centre commencing the following week.
First family report
Ms J prepared two family reports.
At the time of the first report, the issues in dispute between the parties were parental responsibility and the amount of time [X] should spend with each parent. The report writer identified the following issues in the first report:
a)The impact, if any, of either parent’s use of drugs or their ability to care for [X];
b)The impact, if any, of either parent’s care on [X]’s emotional, psychological or physical safety;
c)The impact, if any, of Ms Teague’s mental health or her ability to care for [X];
d)The impact of the current care arrangement on [X]’s relationship with her half-siblings;
e)The parents’ ability to engage in an effective parental relationship.
The mother raised several allegations about the father. She referred to having Post-Traumatic Stress Disorder due to her traumatic relationship. She referred to the father as being cruel to her.
The mother told the report writer that when she was hospitalised in 2016 she “believed she was hospitalised because professionals had not fully investigated her concerns to determine whether they were real or not”.
At paragraph 27 the report writer made the following observations:
“Whilst Ms Teague had attended a range of mental health services she impressed as having limited insight into the management of her mental health. She showed a limited capacity to utilize any specific behaviour management strategies to manage her heightened affect during the assessment interview. Ms Teague impressed as being in denial that her mental health issues had led to a significant deterioration in her ability to care for herself or her children in the past and more recently in 2016. Ms Teague’s capacity to manage any future deterioration in her mental health will be made clearer following the planned psychiatric assessment in January this year. Whilst Ms Teague believed her current mental health care plan and medication enabled her to adequately provide the day-to-day care of [X], should [X] return to live in her care, this belief will need to be balanced by the recommendations contained in the Psychiatric Assessment Report.”
The report writer noted that the mother had engaged with several mental health services but did not present as having insight into her mental health. This is consistent with Dr D’s psychiatric assessments of the mother.
The father expressed concerns about [X] if she were to live in her mother’s fulltime care. He thought [X]’s concern was that if she lived with her mother she would not be allowed to see her father, as that is what occurred in 2015.
The father also told the report writer that the mother’s older children had a lot of problems, impacted by living with their mother and her mental health issues.
At the time of the first report interviews the father had re-partnered with Ms C who has two children. They had been in a relationship for about a year but were not living together.
The report writer expressed concerns about the mother’s lack of insight and also commented “[a]t times throughout the assessment Ms Teague became preoccupied by the history of events during her relationship with Mr Verrell and she was then less able to respond to questions about [X]’s care and safety during this time.”
The mother told her about her concerns about the father, including that [X] is often late to school, that the father sleeps in late, that [X] is afraid of him and that he makes demeaning comments about the mother’s mental health to [X].
The father told the report writer about his concerns for [X] in her mother’s care. He said he wanted [X] to have a good relationship with her mother and her sisters.
The father said he made a number of changes to his life after [X] came into his care. He changed his work arrangements and he moved in with his father so that he has extra assistance, particularly when he worked night shifts. He said at times [X] was late to school because of his work when he would be late returning home in the mornings. He did not think this was a significant issue.
The father spoke about arranging for [X]’s friends to play at their house and arranging a birthday party for [X] the year before, inviting her sisters. He said that [X] was aware that her mother was sick and had been to hospital. The father said the mother’s other children had difficult relationships with their mother and two had had mental health issues as teenagers. He expressed concern about [X]’s mental health being at risk if she lives with her mother.
The father said that the mother had periods of stable mental health but then other periods of paranoia. He is not concerned about the mother’s parenting capacity when her mental health is stable. He supported [X] spending time with her mother when the mother is well.
The father denied ever being violent to the mother or to her children.
Ms B and Ms E were also interviewed for the first family report as they were living in the mother’s home. Ms B expressed concern about the father becoming violent and referred to the incident when the father attended the mother’s home to collect [X] and tried to force his way in. The father said he went to that home once to resume care of [X]. He thought only the mother was home. He did go to the front and the back doors when the mother would not let him see [X]. He then called the police.
Ms E did not have concerns about the father. She thought her mother’s mental health was good at that time. At times her mother was paranoid. The mother installed several video cameras around the home.
The report writer also interviewed Ms C. She said sometimes she had the father stay at her home in Suburb L. [X] was positive about Ms C. She enjoys playing with her daughter Ms M. She said Ms C’s son Mr N was a good driver.
[X] was seven years old at the time of the first interview. She spoke about enjoying school and having a lot of friends there. She wanted to live with her mother as she enjoyed playing with her and said that her father does not play. When [X] is with one parent she misses her other parent. [X] was worried when living with either parent she would not see the other and referred to when she lived with her mother, she would not let her see her father. [X] expected the move between the parents to continue.
On the day of the interview [X] moved easily between her parents. She chose to spend most of her time in the waiting room with her mother and sisters. This did not concern the father.
The observations of [X] with her mother were positive. The mother was child focused and responded to [X]’s cues. [X]’s interactions with her sisters were also positive.
The observations of [X] and her father were also positive. The father was child focused and [X] presented as comfortable and secure with her father. The interactions with Ms C and Ms M were also positive.
The report writer spoke to the mother’s social worker who provided case management support for her. The social worker said that the mother had attended parenting programs and they had worked on strategies to manage issues with her older children and daily tasks. The mother was able to plan goals for small tasks but struggled with long term goals including plans for [X] if she returned to her care. She would be able to continue to provide support for the mother managing her anxiety about contact with the father if [X] spent more time with her mother and if she did not think that [X] was at risk in her mother’s care.
The report writer assessed that the mother was able to provide [X] with emotional support but was not certain about the mother’s ability to provide structured daily care, have a supportive relationship with the school and support [X]’s relationship with her father.
The father spoke about how he managed a variety of practical parenting tasks and identified [X]’s care needs.
Both parents identified risks about the other. The report writer assessed that it appeared that [X] was safe in her father’s care.
At paragraph 96 she expressed the following concern about the mother:
“Of concern during the assessment was Ms Teague’s lack of insight into factors that contributed to the deterioration in her mental health in the past. She also demonstrated a limited capacity to manage her affect when under stress. Such a response may be an indication that Ms Teague’s ability to recognize and appropriately respond to any future deterioration in her own mental health is limited by a belief she remains well. A consequence of this lack of insight into any future deterioration of her own mental health may reduce her capacity to provide [X] with reasonable day to day care. It is strongly recommended that this report be read in conjunction with Dr D’s psychiatric report for Ms Teague, which will identify any future concerns for her mental health and her resultant ability to provide reasonable care for [X].”
With respect to the mother’s allegations of family violence, the most recent incident was when the father attended the mother’s home seeking [X]’s return to his care in 2015.
She noted that both raised the issue of the other using drugs. Neither appeared drug affected at the assessment. The father said he was drug tested at work. The mother complied with one of the ICL’s drug screen requests which returned positive for marijuana.
The report writer made a range of recommendations including that [X] remain living with her father and spend regular time with her mother. She did not think the mother’s time needed to be supervised when her mental health was stable.
She recognised the parents’ volatile relationship but thought that [X] would benefit from her parents attempting to make major decisions together, with the father making the final decision if they are unable to agree.
The second family report
The second family report was prepared a little over two years later in March 2019. [X] and the father had moved to Suburb L and were living with the father’s partner and her two children, Ms M aged 18 and Mr N aged 19. The father changed [X]’s school because of the move. The parents lived about a half hour drive away from each other.
At the time of the interviews [X] had not seen her mother for about eight months.
The mother continued to raise concerns that [X] was unsafe in her father’s care. She alleged that the father had sexually and physically abused [X]. She also alleged that as a result of the father’s psychological abuse “[X] suffered ‘trauma bonds’ and ‘Stockholm Syndrome’ that meant [X] was unable to disclose the abuse she experienced in her father’s care”.
The father was concerned about the mother’s mental health and the possibility of the mother withholding [X] again if she had unsupervised time.
The father told the report writer that [X] had been more settled and calm in his care in the recent months. She has complained of less sore stomachs since not spending time with the mother.
The mother said she had no idea how [X] was progressing as she had not seen her and thought that that was how the father wanted it.
The report writer noted that the issues in dispute between the parties remained around parental responsibility, who [X] should live with and the amount of time she should spend with the other parent.
The report writer identified the following issues during the course of the assessment:
a)The impact, if any, of either parent’s care on [X]’s emotional, psychological or physical safety;
b)The impact, if any, of Ms Teague’s mental health on her ability to care for [X];
c)The impact of the current care arrangement on [X]’s relationship with her half-siblings;
d)The parents’ ability to engage in an effective parental relationship in the future.
Paragraphs 21 to 24 of the report illustrate the mother’s concerns:
Ms Teague
“21. Ms Teague, very early into the interview, identified she had informed the Independent Children's Lawyer in this matter that Mr Verrell ‘may have sexually abused [X]’. Ms Teague based her concern for [X]’s safety in her father’s care on incidences such as [X] attending visits with her ‘frequently with pooh in her pants’, [X] sleeping in her father’s bed until she was 8 years of age, ‘making her toys do sex and stuff’ and ‘coming to Mum’s house and she smelled like Mr Verrell - alcohol, sex and cigarettes’ as indicators that Mr Verrell had sexually abused [X] in the past. Ms Teague reported these concerns underpinned her decision not to return [X] to her father’s care in the midyear school holidays in 2018. She noted she also made a notification to Child Protection about her concerns for [X]’s safety in October 2018 and this notification did not identify a risk for [X] in her father’s care.
22. The writer sought to clarify with Ms Teague details about [X]’s behaviours that led her to her conclusions for [X]’s safety. Ms Teague reported [X] holding her Little Pet Shop toys ‘face to face’ and she moved them up and down against each other. Ms Teague reported observing [X] earlier that day watching a UTube video where the toy characters interacted with each other in a similar manner. She identified the ‘play occurred three times’ and when she asked [X] ‘what are you doing?’, [X] then stopped the play sequence. Ms Teague understood this to be an indicator that [X] was hiding her play because she was aware it was inappropriate. Although Ms Teague said the play may ‘be mistaken for fighting’, she believed this did ‘not explain the smell and pooh in my house’ when [X] visited her.
23. The writer was concerned that the example of [X]’s behaviours identified by Ms Teague provided no significant information to the writer that would support Ms Teague’s belief that [X] was unsafe in Mr Verrell’s care. The writer was further concerned that Ms Teague’s worries were vocalised with [X] and, as reported by Ms Teague, when she interrupted [X]’s play sequences. The writer considered Ms Teague’s example of this event to be an indication that she overlayed her concerns on [X]’s experiences when there was insufficient information that [X]’s play contained obvious sexualised themes. The writer was concerned that Ms Teague’s possibly distorted view of [X]’s behaviours impacted on the parental decisions she made for [X]’s care.
24. Throughout the assessment Ms Teague remained firmly committed in her belief that [X] was at risk in her father’s care. She stated that [X] had not made statements about this suspected abuse because [X]’s relationship with her father was based on a ‘trauma bond’ and she was ‘attached to her abuser’, in a manner similar to the bond experienced by people who developed ‘Stockholm Syndrome’. Ms Teague referred to a time in 2016 when [X] did not wish to return to her father’s care. She noted when Mr Verrell arrived [X] was ‘glad to see him, but not wanting to go’. Ms Teague understood this tension in [X]’s response to be an indication that [X] was ‘scared to displease him.”
The mother was firmly of the view that if [X] suffered any trauma from the police attending the home and removing her it was because [X] did not want to go. The mother did not accept any responsibility. The report writer expressed concern that this showed the mother’s inability to balance [X]’s best interests in making the transition back to her father’s care smooth and calm with her own desire for [X] to live in her primary care.
The mother raised a range of concerns which she believes shows that [X] is unsafe. This includes believing that the father caused [X]’s in-turned eye by hitting her when she was younger and that the father did not want [X] to have an eye operation because that would reveal his abuse of her.
She also believed that [X] has been sexually abused by the father. The mother says [X]’s siblings were sexually abused by their father and the behaviour [X] was displaying was similar to the behaviour they displayed. The mother said [X]’s siblings did not make the disclosures either. The mother would not consider that [X]’s encopresis, which she suffers from periodically, could be stress related and would not accept that [X]’s sore stomachs could be explained by anything other than the father abusing her.
She records the following at paragraph 28:
“28. Throughout Ms Teague’s interview the writer observed Ms Teague’s propensity to allow her concerns for [X]’s safety to overwhelm any consideration that [X] may be safe and happy in her father’s care. Ms Teague consistently rejected any alternate explanations for [X]’s presentation, and she showed no capacity to limit her concerns in how she interacted with [X]. The writer would be concerned for [X]’s ongoing safety and stability in her mother’s care should the Court determine [X] was safe when living with her father. In this case the writer would consider Ms Teague’s reduced capacity to limit the impact of her intrusive thought patterns on Teague’s care to constitute a risk to [X]’s emotional and psychological safety when spending time with her.”
The father said he was aware that the mother was alleging that he had sexually abused [X] and said the mother made similar allegations against the father of her older children. He denied physically assaulting [X] and said he had taken [X] to an ophthalmologist who advised that [X] was too young for corrective eye surgery as her eyes are not yet fully developed.”
The father said that recently [X] enjoyed spending time with her siblings for her birthday. He said he organised this and has invited her siblings to have contact with [X] whenever they like but that they have not sought to do so. He said that he and his partner remained at a discrete distance at [X]’s birthday celebration so that [X] could be assured that she would be returning to his care at the end of the visit.
Both parents identified [X]’s sibling relationships as being important.
The report writer was concerned about the mother’s “concerning capacity to misinterpret [X]’s presentations to confirm her beliefs.” After the observation session between the mother and [X], the mother said that [X] was distressed upon leaving her which she said was a further indication that she is unsettled in her father’s care. The report writer observed that [X] was sad to leave her mother, whom she had not seen since July 2018 but was not distressed and remained settled when she returned to her father. The report writer thought this demonstrated the mother’s limited capacity to support [X]’s relationship with her father.
The mother told the report writer that she had been receiving counselling for the last three years as a victim of family violence and as a victim of crime and that she had been assessed with “complex post-traumatic stress disorder” which had improved since she was not having any contact with the father.
The mother also said that she had considered not having contact with [X] at all if [X] does not return to her care because of the impact on her mental health. The mother said she had been doing a lot of reading to explain [X]’s responses and the father’s motivations. The report writer expressed concerns that the mother’s thought processes were dominated by her concerns about other people’s behaviour and showed limited insight as to how she could address her own behaviours. The report writer identified a number of indicators in the mother’s thought processes that could benefit from psychological assistance to help the mother separate her concerns from [X]’s care and help her more accurately identify [X]’s emotions and wishes with respect to spending time with both parents. If the mother’s parenting skills improved, [X] would have more confidence in her mother’s parenting.
The father expressed concern that the mother’s parenting capacity had not improved and that she could not provide [X] with a stable home life. He said that the mother had had difficult interactions with [X]’s current school and that the staff there did not want the mother to attend the school. The father thought the mother’s time needed to be professionally supervised and did not think that members of the mother’s family would be able to do it and that [X] would continue to worry that she would not be returned to her father. He also said that [X] reports that her mother asks a lot of questions about her time with her father which makes [X] feel pressured and anxious. He believes that professionally supervised time would benefit [X] and they would be able to have reasonable conversations with each other.
The report writer expressed concerns about the mother’s inability to give any indication that she would co-operate with the parental relationship with the father.
The mother expressed concern for her safety if she had any interaction with the father during the assessment. The father said that when the mother withheld [X] he returned to court seeking a recovery order which the report writer observed indicated the father’s capacity to manage his responses for [X]’s safety appropriately. She did not assess that there was a significant risk of family violence in the future as the parents do not speak or have any ongoing relationship.
[X] said she wanted to see her mother at the assessment but was unsure after that. She said she was happy living with her father and that if she was asked to choose she would probably choose to live with her father. [X] said her mother was paranoid about her house and mentioned an occasion when she and her mother played with her toys and left them out. The next day when one of them was missing the mother was worried that someone had taken them. [X] said she thought a cat or dog might have taken them. She also said that her mother thinks someone is living in the roof and that when her mother first told her she was scared but then over time she did not believe it. She said that her mother had security cameras all over the house but when they looked at the footage they never saw anyone at the home. [X] was sad about not seeing her mother and said at times in the last few weeks it was hard to concentrate on school when she was thinking about that. She was happy to see her mother at the contact centre because she had attended the intake appointment knowing that she could go home when she wanted to.
[X] said that she gets worried and scared when she does not see her father and said she was angry with her mother when the mother did not return her in mid-2018. She said she did not know what was happening when the police arrived but was happy when she saw her father. The report writer said “[X]’s emotional and psychological stability impressed as underpinned by the knowledge that she was able to return to her father’s care when she chooses to do so.”
[X] said that at times her stomach hurts and she gets really upset about her family situation. She speaks to her counsellor but had not told the counsellor about the most recent sore stomach she had when she was told she would be seeing her mother again. She also has friends she can talk to and spoke of one friend in particular who also has a separated family. [X] wants to remain living with her father and spend time with her mother when she knows she is able to return to her father’s care. Her desire to live with her father didn’t change after seeing her mother. The report writer assessed that these were [X]’s genuine wishes and were not influenced by her father. Her observations of [X] with her father did not support the mother’s concerns that [X]’s relationship with her father is based on fear. She also assessed that [X] is too young to fully understand the risks in her mother’s care.
[X] spoke with excitement about seeing her siblings and spoke positively about her step-mother. She said sometimes Mr N drives her to school and that she and Ms M shared an interest in sport. The report writer had the impression that [X] was happy and settled with her father and stepfamily.
The report writer observed [X] and her father together. They talked about [X]’s new glasses. The father told the report writer the glasses were new to correct the focus in her eyes. [X] chose the glasses and wore them proudly to the assessment. The observations between the father and [X] were positive. The father said he now works for himself in a business and can work around [X]’s commitments. [X] was proud to report that she earned $20 for helping her father at work.
[X] sat on her mother’s knee and cried when she saw her. The mother spoke gently to her and settled her appropriately. The mother commented on [X]’s glasses saying that they were the ones she bought for [X]. [X] said they were new and that her father bought them. She also told her mother she was seeing an eye specialist. “Ms Teague impressed as uninterested in this information if it did not support her belief of Mr Verrell’s inadequacies as a parent.”
[X] was happy to play with her mother and the conversations between them were all appropriate with [X] initiating some of them. The report writer thought at one stage when the mother asked [X] for a cuddle and [X] went to her and sat on her lap before going back to her own chair, that this was [X] caring for her mother’s needs. I do not think that is significant.
The report writer says that [X] was happy to return to her father and that there was no evidence that she was trying to hide distress or there being any other dis-regulated affect.
In her evaluation section the report writer opines that it appears that the father has provided [X] with a stable home life, that she was more socially engaged now and that she was confident she would not be removed from her father’s care by her mother. Her performance at school had also improved and she was enjoying hobbies and sharing an interest in her hobbies with her stepmother and stepsister.
The report writer expressed the view that [X] appeared settled with her father in both assessments and in this assessment she impressed as being engaged with family life in her father’s care. Her wishes in the first report of wanting to spend more time playing with her mother was consistent with her developmental stage. Being two years older she had a more mature perspective. She spoke about enjoying spending time playing and sharing activities with her mother but also having a less stable time in her mother’s care telling the report writer about her mother’s paranoid beliefs and that [X] wanted to live with her father and spend time with the mother provided that she would be returned to her father’s care.
The report writer said that [X] could enjoy time with her mother when she was assured that she would be returned to her father and that with the predictability and stability she has experienced in recent times her anxiety has reduced. The report writer expressed concern that [X]’s difficulties concentrating at school and stomach pains were likely to be as a result of her fear that resuming time with her mother would mean that she may not be returned to the father.
The mother wants [X] to return to her care and believes that [X] is at risk in her father’s care, expressing significant concerns for [X]’s physical, emotional and sexual safety. She noted that the Department assessed [X] as being safe in her father’s care. There was nothing to indicate that [X] should be removed from her father unless there is further evidence produced to the Court at trial. When considering the time [X] should spend with her mother the main considerations are the stability of the mothers mental health and whether or not the mother could support [X] having a secure and stable relationship with her father. At paragraphs 67 and 68 she says:
“67. In interview, Ms Teague impressed as unable to separate her thoughts and concerns for [X]’s safety when in her father’s care from [X]’s wishes to live with her father. The writer also noted that Ms Teague’s reflections of [X]’s emotional state when returning to her father’s care at the time of the observation sessions was significantly different to that of the writer. The writer remains concerned that Ms Teague’s propensity to misread [X]’s emotional state and overlay her beliefs on [X]’s presentation have greatly reduced her ability to make effective parental decisions for [X] in the past. Ms Teague’s reduced parental decision making has led to her decision to keep [X] in her care in mid-2018 and to require the involvement of the Federal Police. The writer notes that [X] and her father reported this event was distressing for [X] and the writer is concerned the memory of this forced return to her father’s care may have impacted on [X]’s confidence to spend time with her mother in the future.
68. Ms Teague’s propensity to misinterpret [X]’s behaviours as indicators of abuse when there were a number of other possibly and the writer assessed more probable explanations for them is problematic for the writer. As a result of these decisions, the writer believed Ms Teague had placed [X]’s relationship with her father at risk, to the detriment of [X]’s emotional stability and happiness. The writer would find it difficult to make any recommendation that [X] spend time with her mother unsupervised. The writer therefore recommends that [X]’s time with her mother occur at a Children’s Contact Centre on a regular basis, if possible fortnightly for two hours. It may be appropriate for [X] to spend unsupervised time with her mother in the future when Ms Teague was able to support [X]’s relationship with her father, engage in a reasonable parental relationship with Mr Verrell and return [X] to her father’s care as required by Mr Verrell.”
The report writer recommended that the father have sole parental responsibility, [X] to remain living in his care and that the mother have supervised time at the children’s contact centre or another service for a minimum of six times a year. She referred to the importance of the father supporting [X]’s relationship with her half siblings by organising gatherings at least four times a year. She also noted that it may be possible to reconsider the issue of [X] spending unsupervised time with her mother when [X] is sufficiently independent to be able to return to her father’s care and when the mother has successfully attended parenting counselling and developed a capacity to support [X]’s relationship with her father. This may be when [X] is 12 years old. [X] is almost 10 now. I have some concerns about there being any arbitrary age where [X] could manage unsupervised time. Much will depend on whether the mother develops insight.
Cross-examination of Ms J
Counsel for the ICL cross-examined Ms J. As both parties were unrepresented he addressed some of the parties’ concerns with Ms J in order to assist both parties.
Ms J said that the mother’s concerns about physical risk to [X] were identified in the first report as being a scratch and a hit to the head and in the second report the mother was concerned about an injury to [X]’s eye causing her in-turned eye which she believed the father caused.
The psychological abuse the mother was concerned about centred around the mother believing that [X] has Stockholm Syndrome and a trauma bond with her father and is unable to make disclosures about her real experiences in her father’s care.
The mother raised concerns about the father sexually abusing [X] in the second report and focused particularly with respect to the way [X] played with toys and that as her other children had been sexually abused she knew the signs.
Ms J said she considered the mother’s concerns but could not find substance to them. She was concerned that they were a misreading and a misunderstanding of those events, particularly with respect to [X]’s play with toys and the physical risk to [X]. She said the father spoke very clearly about [X]’s eye and what he had done with health professionals. The mother was also concerned about [X] smelling of faeces when she attended her home. [X] spoke about her stomach hurting and being distressed when thinking about spending time with her mother. [X] worried about what would happen and whether her mother would allow her to return to her father. The mother’s concern about [X]’s encopresis was that it could be an indicator of abuse.
Counsel for the ICL cross-examined Ms J about the Department’s involvement with the family. He added the proposition that there had been 12 reports to the Department, with three investigations and one protection order (being when [X] was placed in the father’s care when she was two years old). Ms J agreed that she drew comfort from the fact that the Department has maintained throughout all of its interventions that [X] should remain in the father’s care. She said it was important indication that the Department had assessed [X] as safe in her father’s care.
Ms J confirmed that she was aware of the mother’s allegation with respect to the father’s drug use and was aware that at the time of the first report Mr Verrell said he was subject to random drug tests. She was not concerned in either of her reports that the mother’s drug use represented a significant risk to her day-to-day parenting. She acknowledged that she was aware that both parents struggle to provide drug screens as requested by the ICL.
She also confirmed that what the mother told Dr D about her marijuana usage was different to what she told her. Ms J said her concern remains with respect to using marijuana regularly with mental health issues and the concern being “not to create a return to the higher level of symptomology”. She was not concerned about the father’s drug use.
Ms J acknowledged the concerns that the mother raised in her first report about bruising to [X]’s arm and her other concerns. At the time of the first report the severity of the allegations between the parents were less severe and [X] was going back and forth between the parents. She was comfortable with the recommendations she made in the first report.
Ms J addressed the mother’s allegations of family violence. She noted that she spoke to [X] and two of her siblings as well as her parents for the first report. They spoke about the incident when the father went to the mother’s home to retrieve [X]. Ms J thought that that would have been a worrying incident for everyone. Despite that incident she still made the recommendations that she did.
She said the concern with respect to [X]’s welfare is being exposed to the parents’ conflict. At the time of the first report [X] was seven. She very much wanted to be with both parents. Ms J said the disruption [X] experienced to her living and spend time arrangements would not be good for any child and leads to distress and anxiety at changeovers.
Ms J said she understood that the mother withheld [X] in July 2018[2] because of concerns that [X] was being sexually abused. She noted that the mother’s concerns and [X]’s concerns do not match as [X] was concerned about whether or not she would be returned to her father. She said that “the mismatch of concerns places [X], emotionally and psychologically, at risk in those events.” She is of the view that at the second assessment this had affected [X]’s mother. At the time of the second assessment [X] had some memories of the comings and goings between her parents’ homes and at the time she had not seen her mother for about eight months and was anxious about that. She wanted to see her mother but was reassured by knowing that Ms J would be present throughout that time. She said [X] would not have seen her mother without her being present. [X] told her that she was happy to see her mother at a contact centre and is looking forward to it as she had been to the intake assessment the week before as she knew that someone would be present.
[2] The ICL’s case outline indicated the date [X] was withheld by her mother as being 28 June 2018.
Ms J said that the events of 2018 when the police recovered her was distressing for [X]. [X]’s main concern is whether or not she would be returned to her father. She said [X] had matured and that there was more obvious emotional engagement between the father and her at the second assessment where they clearly enjoyed each other’s company. [X] was very proud about helping her father in his business and talked about attending a business meeting. Her observations of [X] and her mother’s relationship was that there an obvious engagement and that [X] has missed her mother. However, from her observations, [X] was at times comforting her mother and did not need her mother to comfort and soothe her and that her sense of family comes from her father. In Ms J’s view the mother cannot provide [X] with that sense of safety and stability that she has with her father. There would be a real risk to [X]’s emotional and psychological well-being if she was to spend unsupervised time with her mother.
Ms J read Dr D’s psychiatric assessment after preparing a report. She said that reading his report did not have any impact on her recommendations. She also said that the fact that the mother made similar allegations of sexual abuse with respect to her older children also did not affect her recommendations.
Ms J did not speak with [X]’s psychologist nor the mother’s consultant psychiatrist.
She recommended supervised time at a contact centre six times a year on the basis of her understanding of what the contact centre could provide long-term. She said at age 10 two hours a fortnight would be ideal as she grows older the quality of time in a centre is less. She said that two hours in one room would be sufficient for [X] once a fortnight at her age.
Ms J confirmed her recommendation that the father arrange for [X] to see her siblings at a minimum of four times a year as that relationship is an important one for [X]. This would provide visits at three month intervals. She recognised that the siblings are diverse and that this would allow for flexibility as they might not all be able to come at once. The important thing is that it is enjoyable for [X]. Ms J does not think [X]’s time with her siblings needs to be supervised. The father spoke about the birthday dinner with Ms J about maintaining a respectful space but being present and said that when they did get together he was confident that they respected the parameters he set.
Ms J agreed with the proposed orders that the mother be able to liaise with [X]’s school to obtain information about [X]’s progress and to be permitted to attend events parents normally would attend at school. Ms J stated that she did not think that that would require supervision as there are other people there and it is a contained activity with the parents being present but not directly involved with the children. She did not think there would be a concern that [X] would not be returned to her father in those scenarios.
Ms J commented that in her view before the issue of unsupervised time could be visited the mother would need to engage in parenting counselling addressing a number of issues including the mother developing confidence that [X] is safe in her father’s care, that [X] is accurately expressing enjoyment of the father’s time with her father and that [X]’s wishes to stay with her father are genuine. The mother needs to work on her misinterpretation of [X]’s behaviours. She agreed that it is not in [X]’s best interests for there to be further litigation.
The mother expressed concern that the father has passed messages through [X]. Ms J said she was not aware of that but if that was the case it would have to stop.
Ms J agreed that the parents should avoid a recurrence of situation where the AFP had to recover [X]. The mother was responsible for [X]’s trauma in that situation as she was warned very clearly that if she did not bring [X] to Court to see the consultant that a recovery order involving the police attending her home would have to issue. I accept that [X] was traumatised by that.
The ICL’s Counsel asked Ms J about the mother’s allegations that the father of her older four children sexually abused them. She rejected the contention that given the mother’s belief it was natural that she would have a heightened concern with respect to [X]. Ms J said that was not natural nor healthy and that the allegation with respect to her older children’s father is a separate issue from [X]’s relationship with her father. Ms J said her view would not change if in fact the mother does not have Delusional Disorder. She said based on her observations [X] had a healthy relationship with her father and that the mother misreads [X]’s relationship with her father.
The ICL’s Counsel put to Ms J at the mother’s request the proposition that it was Mr F who tracked down the father and that it was at the siblings’ initiative that they saw [X] not the father’s. That is a credit to her siblings.
The mother then cross-examined Ms J directly and put to her that the father initially blocked the siblings’ attempt to spend time with [X] and that their experience was so traumatic that they did not make arrangements for Christmas. She then went on to say that she believes that [X] has a trauma bond with her father and that as the father was present during that visit with the siblings [X] would have behaved the way the father wanted her to. Ms J said that the important thing was that the visit occurred rather than who organised it. Ms J said she would have been concerned if the father had not been there as [X]’s caregiver since she is 10 years old.
The mother said she had photos on her phone that [X] had sent her during the dinner which showed her face changing from being happy to looking like she was shocked when she saw her father viewing her with her sibling. The mother thought [X] had an expression on her face indicating that she was making a mistake. The mother showed the photos to the ICL’s Counsel and to Ms J. Quite properly Ms J said that she could not make much out of that as the photos were in close succession and she does not know who was behind [X].
The mother then turned to the issue of [X]’s glasses. The mother insists that she bought new glasses with a new prescription for [X] and that the photos taken at [X]’s birthday in … show her wearing her old glasses and that is damaging [X]’s eyes. The mother’s questions contained a lot of propositions and a lot of assumptions. Ms J said that if a parent gives the child glasses that they know will diminish their eye health then that is not good parenting but she does not know that that is what occurred in this case. I am not satisfied that the father has mismanaged [X]’s eye health.
The mother then disputed what Ms J recorded in her report about the mother’s concerns in relation to the way [X] played with her toys. The mother demonstrated what [X] did when she held her toys face-to-face, banging them together and making noises. She then went on to say that she did not tell Ms J that [X] had been watching porn on YouTube. She did not think she said anything about it but if she had it would have been that [X] was watching toy porn on YouTube when she withheld [X] perhaps in 2017 but it had occurred at her daughter’s house in New South Wales. The mother said that the video she caught [X] watching was of one dog behind another doing a sexual act. It was necessary to interrupt the mother as she did not give Ms J a chance to comment on her propositions.
Ms J stated that she believes her report reflects the full discussion she had with the mother about [X]’s play with the toys and that the mother had considered that it could be mistaken for fighting. Ms J said that at no time during the discussion did the mother indicate that it was toy porn but rather it was a toy game on YouTube.
The mother then referred to Ms J’s reference to the mother saying it happened on three occasions and when she asked [X] what she was doing she stopped her play. The mother suggested to Ms J she could not be certain that it was only three occasions and asked Ms J to explain why she thought the mother was intrusive on [X]’s emotional and mental health when the mother asked [X] about her play. The mother said [X] she did not give any other indication of her concern. The mother said she only asked [X] what she was doing. Ms J said that that was not the concern she was expressing in that paragraph of her report but rather it was that the mother took that as proof that [X] was hiding inappropriate play and that indicated that [X] was at risk of sexual abuse.
The mother suggested that the fact that she said the play could have been mistaken for fighting indicated that she could separate sexual abuse in her mind. Ms J said that was only for a brief period before the mother returned to that topic.
Ms J rejected the suggestion that a lot of play therapy centres around sexual abuse and says that in her experience working in the area a number of child focused strategies are used with children, some of it being play, some of it being drawing and others being interviewed.
Ms J rejected the proposition that [X] had been trying to indicate to her mother that something of that nature had been happening around her. Ms J thinks that the mother misses that [X] is trying to tell her that she has a good relationship with her father. Ms J was troubled that the mother’s concerns interrupted [X]’s play to such an extent that [X] stopped playing and could not give the mother an explanation as to what her play was. It concerned Ms J that it impacts on [X] and that [X] would worry that she would not be returning home to her father. Ms J rejected the mother’s contention that [X] was concerned about pleasing her father and not concerned about the mother not letting her go home to her father.
With respect to the AFP’s attendance, Ms J said that [X] told her that she was relieved to be back with her father.
The mother became frustrated during her cross-examination of Ms J and said “It seems to me that no matter what I say or what evidence I produce or whatever [X] says, you are convinced that [X] wants to be with her father, that her father can’t do anything wrong and hasn’t done anything wrong, and even when he has done something wrong, he still hasn’t done anything wrong?”
The difficulty is that the mother has not produced evidence to support her claims. I absolutely accept that she is genuine.
Ms J said that if it were not for seeing how [X] reacted after not seeing her mother for eight months, she would have recommended no time.
THE MOTHER: Okay. So when [X] first seen me, you wouldn’t say she was overwhelmed with emotion, that she was happy to see me and ‑ ‑ ‑?
MS J: She was upset. She hadn’t seen you for eight months. She gave you a – if I hadn’t seen that, I would be saying no contact.
THE MOTHER: Yes. And could have that been because [X] has been holding in a lot of hurt and that maybe seeing her mum as someone who is safe and she knows she is safe with to – and released all of her – everything that she has held inside all this time since she hasn’t been able to see me?
MS J: If you had used any other word other than safe, I could have agreed with you, but once you put in safe, I can’t agree.
THE MOTHER: She is safe with the father. She is safe. And how do you figure that?
MS J: From everything I have spoken this afternoon and written in my report and in my observations of her, as my strongest evidence, in all honesty, is the observations of this young person thriving with her father, happy to move back and forward between parents.
THE MOTHER: She’s thriving with her father?
MS J: I would think so.
The mother referred to her concern about [X]’s play with the toys and also the concern about [X] coming to her house smelling from soiled pants. The mother suggested that these two things justified her concern that [X] has been sexually abused. Ms J disagreed and did not accept that those were indicators of sexual abuse. Ms J said she worked in that area (dealing with sexual abuse allegations) for nine years. Ms J said she listens to parents’ concerns and makes an assessment.
The mother said the same allegations that are being made about her now were made by her ex-husband with respect to her four other children, with two children still living with her and her older two now living independently. Her oldest child has two children of her own. Ms J told the mother that as she has not assessed her other children she could not make a comment.
Ms J said there were no indications that [X] suffered from Stockholm Syndrome or had a trauma bond with her father. Ms J referred to her observations of [X] transitioning back to her father’s care and said: “She was very stable. Her thought capacity was not only now but into the future. When you – when you’re in a state of trauma, you have minimum focus, minimum affect, minimum view of time. There was none of that indicated in what I saw occur between transition from child to father.”[3]
[3] Transcript page 45.
The difficulty with the mother’s cross-examination at this point was that her questions assumed that [X] has been abused by her father and has been returned to an abusive household many times. When I pointed out this difficulty to the mother she said:
“No, it’s not established. You know why? Because [X] is not going to speak about her father because she is returned to him every time. In 2015, I made a mistake by allowing her father time with [X], and instead of him appreciating that time with her, he took her for a drive to his grandfather’s house, a less than 20 minute drive, and I knew I had made a mistake, and by the time I got there, [X] was apparently scared of me.”
At this stage the mother was becoming increasingly frustrated and said that [X] will never make disclosures because she is controlled by her father and a corrupt system. The mother suggested that [X] cannot react any differently because of her trauma bond with her father. Ms J said that she did not see anything in [X]’s behaviour and her interactions with her father that suggested she had a trauma bond with her father. She enjoys her time with her father, they have a good relationship and share common interests.
The father did not have any questions for Ms J.
The Department of Health and Human Services
The Department has been involved with this family at several points over the years. The night before the trial began a case plan from the Department was hand-delivered to the father. This caused some concern as it appeared to be inconsistent with the s.91B response the Department had just provided. Fortunately the Department’s liaison officer, Ms O, who is based in the Melbourne Registry of the family courts was able to clarify the Department’s position and arrange for the Department to provide an amended response making their position clear. This is just one example of the valuable assistance that the liaison officer is able to provide. Without her intervention it may have been necessary to adjourn the trial part heard in order to clarify the department’s position.
The Department case plan is exhibit A. The plan is expressed to apply from 7 May 2019 and identifies the protective concerns of [X] being withheld by her mother, the mother continuing to make allegations that the father has sexually abused [X] and the mother continuing to expose [X] to her poor mental health. The Department notes that there has been a long history of such behaviour from the mother and that [X]’s other siblings were subjected to similar allegations. [X] told the Department that she wants to remain living with her father and have supervised time with her mother. She said she likes seeing her mother but feels safe when it is supervised by a staff member at the community centre. The Department worker spoke with the assistant principal at [X]’s school who said [X] presents well, appears happy and has a good group of friends. She is behind in her writing, PE and numbers. [X]’s school attendance is excellent.
The worker also noted that [X] has Amblyopia, wears glasses and sees an eye specialist. The worker stated that with treatment and exercises her eye muscles will strengthen and straightening her eyeball. She does not have any other health problems.
The support worker also noted that [X] sees a psychologist at her school on a mental health plan about once a month.
Confusingly, the Department says in the case plan that they are investigating a number of allegations that the mother raises about the father and his ability to care for [X]. However, they then say in the following paragraph that further Child Protection involvement is not warranted.
Exhibit B is the first s.91B response dated 3 May 2019 which refers to there being 12 previous intake reports, three investigations, two protective interventions and one protection order since August 2011. The Department spoke with [X]’s psychologist who said she provides cognitive behavioural therapy and mindfulness strategies and that [X] presents as resilient and has not disclosed any forms of abuse or neglect to either of her parents or stepmother.
The Department also spoke to Dr P, a consultant psychiatrist who has seen the mother. He advised he had read Dr D’s 2017 psychiatric assessment of the mother and had talked to the mother’s current psychological counsellor, however was unable to say whether or not the mother is deluded and lacks insight and whether or not her complaints are true and have been wrongfully dismissed as the mother states.
The Department recommends that [X] remains living with her father and spend supervised time at a contact centre with her mother for two hours a fortnight. The Department would be concerned for [X]’s safety if she had unsupervised time with her mother. The updated s.91B response dated 8 May 2019 is exhibit C. The Department clarifies its position indicating that it intends to cease its involvement with the family in the coming weeks. The Department states that a case plan has been generated as they are closing the case and that s.169(1) of the Children, Youth and Families Act 2005 (Vic) requires there to be a review date after a case plan is made, but that this is for administrative purposes only and the Department does not intend to review the case plan further.
[X]’s education
When living with the father in 2016 and 2017, [X] was regularly late to school. This has been an ongoing concern of the mother’s. In the first report the father acknowledges [X] being late to school but did not think it was a concern and it was a result of needing to balance his work commitments and caring for [X].
In the first family report the mother discussed her concerns about [X]’s schooling but did not give an indication of having addressed the practical issues and engaging with the school.
Ms J referred to her interview with the assistant principal at [X]’s school at the time of the first family report. [X] had a number of friends at school but she was often late, at times as late as 10:30am. The assistant principal spoke to the father about the lateness and after that this changed. By the second report the father said he had changed his work environment and was able to get [X] to school on time. She acknowledged that there had been a change of school.
The assistant principal was not concerned about the mother’s attendances at school for assemblies and other appropriate occasions. At times the mother attended during school hours wanting [X] to be taken out of class so she could say hello to her. On some of those occasions the mother’s presentation was “over the top”. Often [X] did not want to be taken out of class and the assistant principal thought that [X] wanted to concentrate on school.
[X]’s school attendance and performance has improved. It is important for children that they attend school regularly and arrive at school on time. When children are regularly late to school they stand out from their peers which can be embarrassing for them.
Supervised visits
The ICL filed an affidavit by the contact centre supervisor Ms Q affirmed and filed on 3 May 2019. Ms Q was not required for cross-examination. [X] was nervous before the first visit but settled in. The observations are very positive with the mother and [X] playing and chatting together. There are no concerns about the supervised visits and clearly they are a positive experience for [X].
Psychiatric assessment of the father
Dr D carried out a psychiatric assessment. His report is dated 21 March 2019. The father reported some drug use when he was in his early 20’s. He said he last used drugs about 8 to 10 years ago and he is regularly drug tested through his employment.
Dr D asked him about his criminal history noting that the court papers referred to charges in 2009 for assault and recklessly causing injury and unlawful assault in 2016. The father insisted that he has never been convicted and could not remember the circumstances of the 2009 charges. He said that the 2016 charges were dropped.
The father reported occasional comfort eating and day dreaming. He reported some issues with jealousy in his relationship and occasional temper tantrums.
Dr D described the father as cooperative and shy. His thought stream was normal with no formal thought disorder. He diagnosed him with mild Social Anxiety Disorder and borderline obsessive-compulsive personality traits. He concluded that the father’s psychiatric profile was not significant.
The mother’s mental health
In her affidavit filed on 2 June 2017 the mother says she has been diagnosed with Delusional Disorder but that does not affect her ability to care for [X]. She takes her prescribed medication and is engaged with numerous support services. She refers to the parenting programs she has attended and the work she has been doing with her social worker.
Psychiatric assessments of the mother
Dr D carried out two psychiatric assessments of the mother. The first assessment is dated 7 February 2017. He records the mother telling him that she was having an independent assessment because she had been in and out of hospitals for 12 years with “what they say is a delusional disorder and you cannot say something is delusional if it has not been fully investigated”. The mother said she is suffering from Post-Traumatic Stress Disorder as the result of past events which includes her belief that her ex-husband drugged the children and herself and sexually molested the children and her. She said her children had not given evidence of the sexual abuse and believed that they did that to protect her.
The mother told him about her mother committing suicide in 2007, she came home and found her mother unconscious. At the time of her death the ambulance driver told her that there were other non-prescription drugs in her system. From that time the mother has suspected that there are drugs in sugar and does not allow the children to have sugar when they are in her care.
The mother reported that she first used marijuana when she was 11 years old and has been a regular user since she was 17, using on a daily basis for 15 years. She said she stopped and started after that and did not use for about two and a half years when her life was chaotic and she was homeless. She said that since October 2016 she smokes one or two joints a day and plans to stop. She is aware that it affects her concentration and memory but she finds it relaxing. She last used the day before the assessment.
She said she used amphetamines intravenously for two years when she was a teenager and she has used ice several times, approximately every four months and since leaving her children’s father.
The mother described her relationship with the father as really being ‘friends with benefits’. She said it ended because he was abusive although not as bad as the father of her four children.
The mother told Dr D that in 2004 the Department reported her to mental health services. She said she has been a psychiatric inpatient six times all because of being diagnosed with Delusional Disorder. The mother complains about her children being sexually abused by their father and people breaking into her home, taking things and leaving things. She believes her ex-partners are responsible for it. She also thinks that the father is trying to provoke her so that [X] will remain in his primary care. She told Dr D that none of her complaints have been adequately investigated.
She reported at times having problems with impulse spending and gambling. She can drive erratically when upset. In the past her children have told her she daydreams and disassociates.
She also reported at times feeling paranoid about her children and feeling that they are undermining her.
He observed that the mother was clearly medicated. She was cooperative. At times she was volatile and tearful, especially when talking about her children being sexual abused and [X] being taken away from her.
Dr D records the mother’s diagnosis as being Delusional Disorder and Borderline Personality Disorder with obsessive-compulsive personality traits.
Dr D then addressed the three questions put to him. In answering the first question as to whether the mother can reflect on her past behaviours, he said:
“Ms Teague has, in my opinion, no insight into her psychiatric illness. Ms Teague remains convinced that sugar is poisoned, that her children have been sexually abused and that her home has been invaded on several occasions by her former partners. She insists that evidence exists, particularly for the sexual abuse but that the family contacts of her partner Mr R have meant that the evidence is either hidden or destroyed. When asked if she believed that her behaviour had negatively impacted her children, she initially replied that she was simply trying to protect her children and herself and that she does not scare her children, however, later in the interview she indicated that with counselling she was more aware of the consequences of her actions and particularly the disruption of the children's lives as a result of her hospitalisations.”
The second question was about the assessment of risk to [X] of spending unsupervised time with her mother. Dr D indicated that given the mother’s lack of insight and her continuing use of marijuana, her prognosis was guarded and unsupervised time is a risk.
Finally he was asked to address the risks if the mother does not take her medication. In Dr D’s view the mother will need to take medication for the rest of her life. If she stops her medication, particularly whilst taking marijuana she is at significant risk of having a recurrence of a Major Psychotic Episode.
Dr D’s second report with respect to the mother is dated 27 February 2019. It is a supplementary report. The first substantive paragraphs read:
“On presentation Ms Teague informed me that the current situation is that she has had no contact with her daughter [X] since 6 July 2018 after she refused to return her daughter after her regular fortnight weekend contact visit. Initially Ms Teague informed me that she was concerned that the child was not adequately cared for and was complaining of frequent abdominal pains and was regularly missing school then rather evasively suggested that she could not exactly recall what the problems were. She also reported that she was angry because she had been assaulted by the father’s partner. Later in the interview Ms Teague reported that her real concerns for [X] were that she was being sexually abused by her father. She reported that her concerns were triggered when [X] was fecally incontinent and she believed that this was a sign that there were significant emotional problems. She said that [X]'s father had accused her of molesting her daughter, Ms B, and that the father had a habit of blaming her for things that he had done, for example on one occasion [X] had a bruise to her forehead caused by the father but which he reported as being caused by the mother.
Ms Teague was very concerned that were she to report her fears re her daughter it would simply be a repeat of the allegations she made about her former partner sexually abusing their children. Ms Teague remains adamant that her ex-husband, Mr R, sexually abused all of their children and may even have encouraged the children to abuse each other and she insists that there is evidence of the abuse which police and the Department of Health and Human Services refused to investigate. In the current situation there are no claims of any evidence being available.
When initially seen in 2017 Ms Teague was also concerned about repeated home invasions and these she believes to be continuing and that [X]'s father has the house under some form of surveillance.”
The mother reported that she still smoked marijuana but reduced her intake and smokes one joint a day at most. She said it helps her relax and not ruminate about her daughter being “legally kidnapped” and about her ex-husband sexually abusing her children. She also believes her mother’s death was suspicious and was not suicide. She also believes that around the same time her food was poisoned.
The mother told Dr D that she wants to stop her medication but is reluctant to do that during the court proceedings.
Dr D recorded the same diagnoses as in his first report. He records that the mother finally disclosed that she withheld [X] in July 2018 because she believed the father was sexually abusing [X] but did not want to disclose this because of the allegations she has made against her ex-husband.
Dr D expressed the view that the mother has “fixed delusional beliefs” which have not changed in the last two years. He does say that she appears to have parented two of her children appropriately and has a close relationship with her children. He confirmed this opinion in cross-examination. He said the mother is expressing the same concerns now that she did in 2017.
Counsel for the ICL asked Dr D to expand on his diagnosis of the mother having a Borderline Personality Disorder. He said that people with this disorder have often grown up in environments where they feel unsafe. She came from a dysfunctional family. Her mother had significant mental health issues. People with this disorder have trouble regulating their emotions. The mother described engaging in various borderline behaviours. People with obsessive compulsive traits are often perfectionistic. When cross-examined by the mother about this, he said that the mother’s descriptions of her upbringing was of an unstable home environment with her mother having tried to commit suicide when the mother was three months old and eventually committing suicide.
Dr D’s view that the mother has a fixed Delusional Disorder is based on the mother repeating the same beliefs about [X] and the father that she did during his first assessment two years ago.
He expressed concern about the mother’s desire to stop her medication whilst she is still using marijuana. Marijuana has the effect of somewhat cancelling out the benefits of the medication. Until she stops taking marijuana, it is impossible to know whether or not the underlying psychosis has resolved or whether it is a chronic condition for which the mother will need to take medication for the rest of her life.
The ICL’s Counsel asked Dr D to expand on his comment:
“Given her record of apparently successfully parenting her other children, the court might consider supervised contact, particularly while these other matters are explore.”
Dr D said that he had no evidence that the mother had not parented her other children appropriately. As the delusional beliefs focus on [X] she remains at risk. Dr D said he used the words “might consider supervision” as he is cautious about stepping outside of his role.
The mother cross-examined Dr D. He clarified that he was not suggesting that the mother’s allegations of sexual abuse should be further examined but that if [X] makes any allegations in the future they should be taken seriously. He does not think the mother’s allegations that [X] has been sexually abused by her father should be investigated any further. The mother asked Dr D about [X] having a trauma bond with her father, suggesting that would mean that whilst [X] is living with her father she will not disclose abuse. He said: “I think we underestimate children’s capacity to tell us the truth. And I think enough opportunity has been given in this for these matters to be – for [X] to have been given an opportunity to report such abuse, were it to have happened.” He then went on to emphasise that he has not assessed [X]. He would not be drawn into making comments about [X]’s behaviour given this.
Again, as the mother was cross-examining Dr D and not getting the answers she wanted, she became increasingly frustrated and started talking over the top of him. She also sought to cross-examine him about various matters which are not before the Court. It is clear that this was a difficult process for the mother and she expressed her frustration stating that she was “tired of being told I am delusional … when my allegations have not been investigated properly.”
Both parties were briefly cross-examined. The father confirmed that he agrees with the ICL’s proposed orders. He does not see how the mother’s time can progress from supervised time at a contact centre, as where this has occurred previously the mother has withheld [X]. He expressed concern about what the mother tells [X], including that people have been breaking into her home, the pressure the mother puts on [X] and her interrogations of [X].
The father denied ever physically or sexually abusing [X].
The father says [X] loves her mother and wants to see her. He is supportive of that provided it is safe. The father said he acknowledges the importance of [X]’s relationship with her siblings.
The father says [X] used to get a lot of sore stomachs around the time she was to see her mother and around court dates. He says the school also noticed that. He believes [X] was anxious about not knowing what was going to happen. In the lead up to seeing her mother at the contact centre [X] was anxious again but she enjoys seeing her mother there and is reassured by the fact that other people are there and she knows she will be returned to her father.
The father says it is impossible to communicate with the mother, even by text as she sends multiple, long messages.
The mother cross-examined the father. The father said there were two occasions where he attended the mother’s home after the mother withheld [X]. He denied being violent when he attended. He said he attended her home after making several unsuccessful attempts to contact the mother. The father confirmed that he did call the CATT[4] team about the mother in 2015 as he was very concerned about [X]’s wellbeing. He said the police removed him from her property because he had an outstanding warrant for a driving offence that he had forgotten about.
[4] Crisis Assessment and Management Team.
The mother was cross-examined. She confirmed that her position is that [X] should be returned to her care immediately and the father should have professionally supervised time.
The mother became distressed when being cross-examined and said that every time she agreed to consent orders she was told that it was the only way she could see her child and every time the father continued to hurt and neglect [X]. She said she cannot do it anymore. The following exchange took place:[5]
[5] Transcript 9 May 2019, pp 45-46.
COUNSEL FOR ICL: Yes. Now, you’ve listened to the evidence of the family report writer?
THE MOTHER: Yes.
COUNSEL FOR ICL: I presume you reject her evidence?
THE MOTHER: Yes, I do.
COUNSEL FOR ICL: Yes?
THE MOTHER: I do. And there’s one thing that – when I spoke with the family report writer, she actually – when I said, “But [X] came to my house smelling like sex and alcohol and cigarettes,” I said, “Would you say that’s a big red flag?” and she agreed, you know.
COUNSEL FOR ICL: All right. Okay?
THE MOTHER: And then she just sits there and says that [X] loves her dad, and she said to me that – like, because I said he coaches her, but people don’t see that, and she said, “Isn’t that in the same frame as a trauma bond?” and – yes, it is, you know.
COUNSEL FOR ICL: Can I ask you this, though. Your concerns in relation to the father ‑ ‑ ‑?
THE MOTHER: Yes.
COUNSEL FOR ICL: Drug use?
THE MOTHER: Yes.
COUNSEL FOR ICL: Violence?
THE MOTHER: Yes.
COUNSEL FOR ICL: Trauma bond and/or Stockholm syndrome?
THE MOTHER: Yes.
COUNSEL FOR ICL: All those things?
THE MOTHER: Yes.
COUNSEL FOR ICL: Sexual abuse allegations?
THE MOTHER: Yes.
COUNSEL FOR ICL: They’ve all been raised time and time again, haven’t they?
THE MOTHER: Yes.
COUNSEL FOR ICL: Yes. So even though the people who have been dealing with those issues – Ms J, the family report writer; and Dr D, the psychiatrist?
THE MOTHER: Yes. Yes.
COUNSEL FOR ICL: Those people have taken those things into consideration, but they’ve come up with a disagreement with you, haven’t they?
THE MOTHER: Yes.
COUNSEL FOR ICL: Okay. So you can’t say that your issues have not been considered?
THE MOTHER: Yes, I can.
COUNSEL FOR ICL: You can?
THE MOTHER: I can because there’s actual evidence to prove that my ex-husband did sexually abuse my children.
COUNSEL FOR ICL: Okay?
THE MOTHER: There’s tapes that exist where my daughter is saying that she has been sexually abused by her dad and that her and her sisters have been sexually abused. My ex‑husband made a statement saying that – an untrue statement – a false statement about me being friends with a woman who was sexually abused by her dad.
COUNSEL FOR ICL: Can I just – sorry?
THE MOTHER: There’s reasons that he made that false statement. And those tapes exist. Why isn’t anybody looking at them? And DHS actually withhold the evidence from me?
COUNSEL FOR ICL: Let me ask you this, though?
THE MOTHER: They knew about it.
COUNSEL FOR ICL: But you’ve raised it with the Department of Human Services, haven’t you?
THE MOTHER: Yes.
COUNSEL FOR ICL: Yes?
THE MOTHER: And the department is not always right. They make really, really bad decisions, like sending Ms B and Ms E back – back to their dad, and when they came back to me, they were suffering from depression and anxiety. Ms B’s life was ruined.
At this stage the mother was extremely distressed and was shouting. She then directed her attention to the father’s partner who sat in the Court throughout the trial. The mother became extremely abusive.
The mother relied on a report prepared by her psychiatrist Dr P. His report does not advance matters. The complaints the mother makes to him are consistent with the complaints she has made to the experts in these proceedings. He says he cannot confirm whether or not she is delusional and whether or not her allegations are true. He says that the mother has expressed appropriate concern and affection for [X] and does not think she is a risk to [X]. Dr P’s report is not annexed to an affidavit and he was not available for cross-examination. I do not place weight on his comments with respect to the mother not being a risk to [X].
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
I am satisfied that the orders as proposed by the ICL are in [X]’s best interests.
I am satisfied that it is not in [X]’s best interests for the parents to exercise equal shared parental responsibility. The parents cannot communicate. The mother is convinced that the father has abused [X] and continues to abuse [X]. I will order the father to have sole parental responsibility.
[X] currently has a meaningful relationship with both her parents. The orders I will make for the mother to spend supervised time with [X] necessarily restricts the quality of her relationship with the mother. This is particularly so given it is likely in that in the future these visits are likely to only be four times a year. It is rare for the Court to make long term supervision orders. In this case I am satisfied that they are the only orders for time I can make in [X]’s best interests. Unsupervised time would place [X] at an unacceptable risk of psychological and emotional harm.
The issue of [X] being at risk of abuse and family violence is a significant factor in this case. The mother is convinced that [X] has been abused and continues to be abused by her father. She insists that her allegations have not been properly investigated. She has made similar complaints against the father of her four older children. She says there is evidence to support this. At several points throughout the proceedings before this Court the mother has been legally represented. The mother has not produced evidence to support her claims. The Department has had significant involvement with the family over many years. It has not substantiated the mother’s concerns. It supports [X] living with the father and [X] spending professionally supervised time with the mother.
I accept the evidence of the Ms J and Dr D.
[X] has expressed clear views to Ms J. [X] loves her mother and wants to spend time with her. She also wants her time with her mother to be supervised which has the effect of protecting her from the mother having inappropriate discussions with [X] and also ensures that [X] will be returned to her father at the end of the visits. It will enable [X] to have positive visits with her mother.
[X] is doing well in her father’s care. She is benefiting from the stable home life he provides and the security she has that her mother will not be able to again withhold her from her father’s care. She is doing well at school.
The father’s parenting of [X] has not been perfect. No parent’s is. His inability to get [X] to school consistently on time was concerning. He has now addressed that issue and [X]’s attendance record at her current school is excellent.
[X]’s relationships with her siblings are important. It will be important that the father ensure that [X] remains in touch with her siblings and has the opportunity to spend time with them.
I am satisfied that the father is able to provide for [X]’s physical, intellectual and emotional needs. I am also satisfied that he has facilitated [X]’s relationship with her mother when it has been safe to do so and will continue to do this in the future.
Unfortunately the mother does not have the capacity to provide for [X]’s emotional needs. She has exposed [X] to her delusional beliefs which range from people breaking into her home to [X] and her other children being sexually abused by their fathers. She is not able to protect [X] from these beliefs.
I accept that the mother is genuine in her beliefs which are incredibly distressing for her. The mother lacks insight into this which means she is unlikely to be able to address the risk she poses. The notation to the orders are designed to assist the mother to address the risk issues so that if she is able to do so she can seek to spend unsupervised time with [X] in the future. This may well lead to further court proceedings.
Conclusion
I am mindful that making orders for supervised time on a long term basis should only be made in cases where there are cogent reasons for doing so.[6] I am satisfied that this is a case where the only order for time I can make is for [X] to spend professionally supervised time with her mother. The only other alternative would be for there to be no time at all between [X] and her mother because of the risk of emotional harm to [X]. There is no evidence that [X] is at risk of harm in her father’s care. In fact [X] is doing well in her father’s home. The mother is sincere in her beliefs which I accept are delusional. They have not changed during the course of the proceedings; if anything they have intensified. There are positive aspects to [X]’s relationship with her mother. [X] wants to see her mother provided that she has the security of knowing that she will be returned to her father’s care and will not be exposed to inappropriate conversations and the mother’s delusions. Professional supervision provides for this.
[6] Moose & Moose (2008) FLC 93-375; Champness and Hanson [2009] FamCAFC 96
The reality is that there are limited public resources that can provide for professionally supervised time, particularly in the case of long term supervision. During the course of the trial the ICL made enquiries with the Suburb A CommUnity+ Contact Centre. They advised that they can accommodate supervised visits for the mother four times a year. I will make an order reflecting this. If it is possible to accommodate more frequent visits then that can be done.
I am satisfied that the orders that the ICL proposed are in [X]’s best interests. The notations the ICL proposes gives the mother some guidance as to what she would need to address if she brings an application to spend unsupervised time with [X] in the future. If the mother is able to address the protective concerns there may be further court proceedings if the parties are unable to reach agreement but is appropriate that the mother be able to do so.
The risks may also reduce as [X] grows older. This is something Ms J made reference to in her evidence. I cannot predict at what age that might be and in these circumstances I am satisfied that the order for supervision must be indefinite.
I certify that the preceding two hundred and forty-six (246) are a true copy of the reasons for judgment of Judge Harland
Date: 12 June 2019
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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Duty of Care
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