WALLACE & WALLACE

[2011] FamCA 191

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE [2011] FamCA 191

FAMILY LAW - CHILDREN - Best interests - competing parenting orders - Mother’s mental health – order for sole parental responsibility - equal time or substantial and significant time contrary to the best interests – Order for time spent to be supervised

Family Law Act 1975 (Cth)

APPLICANT: Mr Wallace

RESPONDENT: Ms Wallace

INDEPENDENT CHILDREN’S LAWYER: Mr Cahill

FILE NUMBER: MLC 9861 of 2009

DATE DELIVERED: 3 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 3 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brennan

SOLICITOR FOR THE APPLICANT: Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT: Ms Digby

SOLICITOR FOR THE RESPONDENT:	Mc Intyre & Statton
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Skerlj

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cahill & Rowe Family Law

IT IS ORDERED THAT

1. All previous orders relating to the child of the marriage S (“the child”) born on … February 2001 be and are hereby discharged.

2. The father have the sole parental responsibility for making all decisions with respect to the child.

3. The child shall live with the father.

4. The child shall spend time with the mother for up to six periods of three hours in each calendar year, to include:

   a.one three-hour period between 24 December and 26 December; 

   b.the child’s birthday;

   c.the mother’s birthday;

   d.three other periods as may be agreed between the parties in writing; and

   e.as may be otherwise agreed between the parties in writing.

5. That paragraph 4 hereof be subject to supervision as follows:

   a.in respect of the time referred to in paragraph 4(a) hereof, by the father; and

   b.in respect of all other periods, by Ms K or Mr K -

   provided however that the parties may agree in writing to such supervision being conducted by another appropriate person.

6. Notwithstanding any other provision in these orders, the father shall:

   a.authorise any school attended by the child to supply school reports and school photograph order forms to the mother at her expense; and

   b.advise the mother of any health problem or issue with regard to the child that requires hospitalisation.

7. The mother be and is hereby restrained by herself, her servants and agents as follows:

   a.spending time or communicating with the child other than in accordance with these orders;

   b.attending any school, school event or like activity other than in accordance with these orders;

   c.attending at any residence, business or other place which is attended by the father and/or the child;

   d.discussing any issue or showing any document directly or indirectly relevant to these proceedings with the child; and

   e.when spending time with the child in accordance with these orders, taking the child to any psychologist, social worker, medical practitioner or like professional other than in the event of a physical emergency in which case she inform the father thereof as soon as absolutely possible and directly involve the supervisor pursuant to these orders.

8. The Independent Children’s Lawyer be permitted (after consultation with Ms W, the child’s psychotherapist) to provide to the father a letter containing information outlining the requirements of such persons who shall assume the role of supervisor under these orders, and the father shall provide a copy of the relevant letter to each person acting in the role of supervisor under these orders.

9. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

10. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

11. All subpoenaed and exhibited documents be returned to the party producing such document on the usual basis.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Wallace & Wallace is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9861 of 2009

Mr Wallace

Applicant

And

Ms Wallace

Respondent

REASONS FOR JUDGMENT

introduction

1. The parties seek competing parenting orders with regard to their daughter who is aged 10 years.  The husband seeks to retain the primary residence and sole parental responsibility of the child while the wife seeks equal shared parental responsibility and equal time.  The husband proposes that the wife’s time be restricted to six periods of three hours each calendar year.  The husband’s position is supported by the Independent Children’s Lawyer.  The most important single issue in these proceedings has been the question of the wife’s mental health.

2. The single expert appointed by the Court has diagnosed her as suffering from paranoid disorder.  The wife disputes that diagnosis and relies on other material to all of which I will refer in due course. 

credibility

1. It is appropriate for me at this stage to make certain general findings with respect to the question of credibility.  I was most impressed by the husband.  I find that he was a witness of the truth, that he was frank, open and honest and that in all respects his evidence is to be accepted.

2. Regrettably, I cannot make the same finding with respect to the wife.  I find that I am unable to rely on the credibility of the wife but not through any deliberate action or lack thereof on her part but rather as a result of what I will find to be the state of her mental health which in my view impacts directly and fundamentally on almost every aspect of her life. 

relevant facts

1. The mother was born in 1955 and is presently aged 55 years.  The father was born in 1961 and is presently aged 49 years.  The mother is occupied in a voluntary position and the father is self-employed as the manager of a franchise.

2. The parties commenced living together in approximately 1997 and married in 1999.  Their child who is the subject of these proceedings was born in February 2001.  The parties separated on 23 July 2009 on which date the father left the home with the child and has cared for her ever since.  The circumstances of that are extremely important and I will refer to them shortly. 

3. From the time that the child was old enough to undertake formal education, there have been difficulties in that education.  In 2005, the child was enrolled in a kindergarten and prior to the commencement date, she broke her arm.  A report was made to the Department of Human Services of the Sate of Victoria (“DHS”) and that appears to me to be the first time that DHS were involved in any way with matters concerning the child’s care.

4. In 2006, the child was enrolled at O school but did not attend there as it was alleged that the mother had had an altercation with another parent at orientation.  The wife indicated that she was suspicious that that other parent was associated with the Transport Accident Commission to which I will refer in due course. 

5. The child appears to have commenced preparatory level schooling by distance education in 2007.  The evidence is in dispute with regard to the degree of involvement in that programme by a trained teacher.  It is clear that the wife was at least significantly involved in educating the child in that programme.

6. One of the significant issues which arose as part of that distance education was the question of whether the wife was actually doing the work which the child should have been doing and was submitting it in the child’s name.  The evidence does not permit me to make a finding with respect to that matter and in any event, it is unnecessary to do so.  A report with regard to concerns about the child was made to DHS in April 2008.  The report appears to have concentrated on the child’s non-attendance at school and her exposure to what was described as the wife’s poor mental health and environmental neglect.

7. DHS made an application to the Children’s Court of Victoria at Geelong seeking a protection order and in August 2008, an interim protection order was made for a period of three months under state legislation with the child being released into the care of her parents.  In October 2008, following DHS involvement with the child, she was transitioned into mainstream schooling commencing at C school in Geelong at that time.  The wife alleged that the child was bullied apparently as a result of which there was some absenteeism.  There is no independent evidence to substantiate that allegation.

8. In 2008 and 2009, DHS were involved on many occasions with regard to protection issues.  I have already noted that she commenced at C school in October 2008.  She moved to H school at the commencement of 2009 year.  It is clear on all the evidence that through the first half of 2009, DHS were becoming more and more concerned about the child and questions of her welfare.  Ultimately, they were on the point of making an application to the Children’s Court for a protection order placing the child in foster care.  They made the husband aware of their intentions as a result of which the husband realised on advice from DHS that if he did not leave the family situation and take the child with him, the chances of the child being placed in foster care were very substantial.  He acted accordingly. 

9. The wife alleged in evidence that the husband was effectively bullied into the separation and did not want to separate.  I have no doubt that the proposed actions by DHS brought about the husband’s decision to separate but I reject the proposition that he was in anyway bullied or intimidated into acting in that way.  I find that in leaving the matrimonial home with the child, he acted in her best interests and acted admirably.  It is appropriate to expand on that proposition. 

10. The evidence satisfies me that the relationship of the parties up until July 2009 or perhaps shortly before that was what is often described as traditional.  The husband is a franchisee and in that capacity is a manager.  His occupation required him to be involved for very large amounts of time, and I infer from all the evidence that he was so involved in a positive sense which was to the benefit of the family.  Because of that involvement, he was less involved in day to day care of the child.  The traditional nature of their relationship resulted in that care being largely left to the wife.  I accept his evidence that as time went on, he began to realise that the wife’s behaviour, particularly towards the child and her parenting, was unusual or odd and that he became increasingly concerned about it.

11. Upon the ultimatum of DHS with regard to the probability of fostering of the child, he realised that he had to act and did that with the very best of motives.  Since that time, his parenting has on the evidence before me proved to be faultless.  Any suggestion to the contrary is not supported by the evidence.  Since the separation, the husband and the child have lived in rental accommodation.  The wife has continued to live in the former matrimonial home.  There has not been an alteration of property interests between the parties. Those matters appear to be unresolved at this stage. 

12. Not only is the husband completely independently and solely maintaining himself and the child with no financial support by way of child support or any other means from the wife, but also he has continued to pay outgoings on the mortgage on the home and utilities, albeit they may well be in arrears which would hardly be surprising.  That is another aspect of his admirable conduct.

13. Following the separation in July 2009, the child spent time with her mother twice a week supervised by DHS.  On 11 December 2009 I made orders for the child to live in the husband’s primary care and spend time with the wife to be supervised at the Bethany Contact Centre for two hours per fortnight and one hour each alternate week, increased to two hours per week during 2010.  Regrettably, things did not go smoothly.  In September 2010, the Bethany Contact Centre declined to be further involved in the matter.  I refer to and accept evidence by way of a letter from the Bethany Contact Centre to the independent children’s lawyer dated 9 September 2010 in which the Centre advised that:

    We have found that the contact visits between [the mother] and her child have shown little progress towards self-management.

14. They then referred to examples of issues that raised concern for the Centre –

    There has been little improvement for [the child] regarding her interaction with her mother. [The child] often appears dominated by her mother’s views.

    [The child] continues to use dolls as part of her contact visits and regularly refers conversation towards her dolls.

    I particularly refer to the part in the above quote which suggests that the child            continues to use dolls to express herself.

    This is a theme which occurs repeatedly in the expert evidence and has been concerning many experts who have been involved in this matter for some time. 

15. Following the cessation of contact supervised by the Bethany Contact Centre in September 2010, there was no contact or time spent between the child and her mother until Christmas Day 2010.  On that day the husband supervised approximately two hours of contact between the child and her mother.  There has been one further period of time spent between them which was on the child’s birthday a few weeks ago.  The present situation is that the child lives in the sole care of her father and has not seen her mother since her last birthday. 

the parties’ proposals

1. As I have noted, the husband seeks that the child’s contact with her mother be restricted to six occasions of several hours each time being on Christmas Day, the child’s birthday, the mother’s birthday and three other times.  He seeks sole parental responsibility together with various other ancillary orders which I will note in due course.

2. The wife seeks shared parental responsibility and equal shared time.  In the event that I am against her on that matter, she makes no alternate proposal and likewise the husband makes no alternate proposal were I to support the wife’s application.  The ICL essentially supports the husband’s proposal.

the expert evidence

1. A large part of these proceedings had been occupied by expert evidence.  It is necessary that I examine that expert evidence in significant detail as it goes right to the heart of these proceedings.  In doing so, I reiterate that the fundamental question is whether the wife suffers from paranoid disorder.

2. On 9 December 2009, Ms G, an officer of DHS, swore an affidavit which is relatively short with substantial annexures. Neither Ms G nor any of the experts whose reports are before the Court and which I have accepted pursuant to the provisions of division 12A of Part VII of the Family Law Act 1975 (“the Act”) has been required for cross-examination.  No complaint has been made with regard to the admissibility of that evidence.  Accordingly, the evidence is unchallenged and I have no reason to reject it, subject to certain findings I will make with regard to other particular evidence which I will refer. 

3. As I have found, DHS applied to the Children’s Court in August 2008.  As part of that application, DHS gathered a significant body of expert evidence.  The first matter to which I refer is a report of Ms O which is dated 1 June 2008.  Ms O is a consultant forensic psychologist and no challenge has been made to her qualifications.  With regard to the question of the child’s schooling, Ms O, having assessed the wife and S, recommended in her report that the child should be integrated into the:

   …main stream school system as a matter of urgency.  Such integration is imperative for the psychological well being of [the child] to afford her the necessary stimulation and peer contact to assist in developing necessary social and communication skills. 

   Careful consideration and planning need to be applied to the process of integration of [the child] into school as [the mother’s] clinical presentation strongly suggests that she will undermine any attempt to integrate [the child] into main stream school services. 

   [The child] should undergo comprehensive developmental assessment by an appropriately qualified Educational Psychologist.  This will enable accurate identification of [the child’s] needs and the need for special services that may be required to optimise her success at school. 

   [The mother] should undertake a comprehensive psychiatric assessment and treatment.  Attempts should be made to secure from [the mother] or third party, access to and provision of independently verified historical information to the selected assessor.  Such information is imperative for accurate assessment and diagnosis.

4. I particularly note the recommendation that the wife should undertake:

   A comprehensive psychiatric assessment and treatment

   That is a theme which arises over and over again in the evidence before me.  It is a theme which has not been taken up by the wife despite some of her assertions to the contrary.  The psychiatric assessment referred to as recommended by Ms O was conducted by Dr E, a consultant psychiatrist who reported on 28 October 2008 as annexed to the DHS affidavit.  Dr E in October 2008 said:

   [The mother] suffers from a paranoid disorder.

   [The mother] was guarded in regard to her presentation at the assessment interview. She has little insight into the deeper origins of her various over-valued and somewhat fixed concerns. She has been highly threatened by Departmental involvement. There are strong indications that her management of the home was dysfunctional. She has little in the way of social supports apart from her mother. She has found refuge within the Seventh Day Adventist Church but it is noted that issues in regard to [the child’s] education in that respect have also been affected as described. Accordingly, she has become increasingly more isolated and there are strong suggestions of enmeshment between [the mother] and [the child] who has become a ‘mini me’.

   [Ms O] has indicated, such disorders are extremely difficult to treat. [The mother] is likely to resist the notion that she has a psychiatric condition. Her insight is likely to remain limited. She gave equivocal responses in regard to educating her daughter in a normal manner. It is unclear at this stage as to her ability to form a therapeutic alliance. The problem is somewhat guarded accordingly.

5. With regard to that quote, I note that Dr E opined that “such disorders are extremely difficult to treat” because one of the preconditions to such treatment is the need to recognise that the relevant person suffers accordingly.  To this date despite many entreaties the wife has refused to do that.  While that is understandable, it remains at the heart of these proceedings. 

6. On 3 December 2008, a report by Barwon Health noted that both parties had requested that there be no further involvement by the agency in the family.  That, as I have said, is part of what might be called a move by the husband towards ultimately recognising his need to act.

7. On 27 April 2009, DHS reported:

   Given [the child’s] age and vulnerability, along with the exposure to her mother’s mental health and father’s inability to strengthen his parenting role within the marital relationship, it is recommended that [the child] should be placed on a Custody to Secretary Order and placed out of her parents care into a therapeutic placement where stability and consistency of care is able to occur without conflict and negativity.  This will enable [the child] to attain her developmental milestones in the areas of social, emotional and psychological development in a positive environment that will promote a healthy and secure transition into the macro world, thus securing her sense of self and individuality.

1. Again, that is evidence on which I rely in addition to my own observations of the husband and his progress towards realisation of the need to act as he did in April 2009.   He readily concedes regret that he did not act sooner than he did but in the circumstances, he should not be blaming himself.  On 11 June 2009, as part of the preparation for the proceedings which resulted in the separation in the next month, Ms R, a consultant forensic psychologist noted:

   There is no evidence that [the father] would act overtly protective of [the child]. He is likely to continue with covert strategies to reduce [the mother’s] level of paranoia and stress, in the hope it will be sufficient to meet DHS expectations.

2. On 17 July 2009, Ms T a registered psychologist engaged by DHS reported on behalf of the Berry Street Organisation, a highly reputed organisation in this field and their agency ‘Take Two’ recommended that -

   [The child] should be provided with a predictable, stable, consistent and nurturing home environment where the adults in her life are consistently sensitive and appropriately responsive to all her psychical, psychological and emotional needs.

   [The child] has benefited from the process of attending sessions with the writer as part of the assessment process and by doing so, making known through her play and verbally, her thoughts, feelings and experiences. [S] will benefit from ongoing, weekly therapy sessions to further explore through play and verbally what makes her internal world, her experience of relationships and her external environment.

   The session attended by [the child] together with her parents Mr and Mrs [Wallace] was similarly helpful in providing an experience for [the child] and the family where they were supported by an emotionally safe and supportive therapeutic environment to share their experiences with each other. In light of this, it is a recommendation of Take Two that [the child] together with [the father and mother] attend monthly family therapy sessions. The aim of these sessions is to provide [the child] and her parents the opportunity to communication with each other in an environment whereby the therapist(s) serves as an emotional buoy within the interaction all the while ensuring that the lines of communication are open and the relations as positive as productive as possible,

   [The child’s] current placement at [H school] should be considered with great thought and recognition of [the child’s] self-reported positive experience of attending the school.

1. On 27 November 2009, a further report by Berry Street in the same circumstances referred to in the previous report noted –

   [The child’s] situation at the time of her initial assessment by Take Two was perpetuated by her experience of her mother’s ongoing anxieties about her entry into a mainstream school setting but more so, it’s symbolism of the external, unknown world which [the mother] was highly wary of. [The child] was extremely in tune with the opinions her mother holds about school being an unsafe place and persons, external to those with whom [the child] has an existing relationship, needing to be treated with caution. This ongoing experience of her mother perpetuated an occurrence in [the child] whereby at times she took on the thoughts and feelings of her mother as though they were her own. Because [the child] was so in tune with her mother’s thoughts and feelings, to consider her own, which invariably differ to her mother’s, provoked an anxiety response in her. The exploration by both [the child’s] parents of alternative school settings and facilitation of a move to an alternative school was likely to perpetuate the experience for [the child] of not having her thoughts, feelings and experiences considered, given that [the child] had noted her positive experience of her current school.

2. Dr S is a consultant psychiatrist.  The wife was referred to him by her general practitioner for assessment of her mental state.  Dr S opined that with regard to a diagnosis of the wife’s mental state, there was “no clear diagnosis” and reported –

   I think [the mother] can be best formulated as a lady who enjoyed a stable childhood with a close bond to her mother and 7^th day Adventist schooling, who has hope for the same for her daughter. It appears her perfectionistic personality style may have inadvertently aggravated DHS processes leading to a snow-balling of disputation culminating in her losing influence over her daughter’s schooling and even access to her daughter. These matters probably need clear resolution by a court decision maker.

   Under the heading ‘Management Plan’ Dr S reported:

   1. Clinically I do not think I need to see [the mother] again, and she is accepting of this.

   2. She may need supportive counselling in the future if struggling with all the stress of the above mentioned matters – this is optional, but good stress management is part of good parenting, and I have encouraged her to consider this.

   3. There needs to be a clear court determination in this complex protracted situation given effectively it appears a mother has been separated from her child.

3. I have a very significant difficulty with Dr S’s evidence. Apart from the procedure aspects of it, that was an adversarial witness for whom leave was not sought.  Given the stage of the trial, I was prepared to accept this evidence.  Regrettably, Dr S was not available to attend Court to give evidence or even apparently give evidence by phone.  I find his report to be somewhat less than adequate, particularly for a professional of his standing.  Unlike the report of Dr E and other experts to whom I have referred and the later report of Dr E to which I will shortly refer, Dr S does not appear to have had any of the material available to him from previous reports including DHS, various psychologists and the report of Dr E.  Because he had no background, the entirety of the material on which he relied was that which he obtained from the wife.  It is hardly surprising that the wife did not tell Dr S that she had been diagnosed as suffering from a paranoid disorder and that many other professionals had expressed grave concern as to her parenting of her daughter.  Dr S was therefore acting on the basis of far from complete material.  My own view is he should have sought that material before he wrote his report.  If that is unfair, then the fact that the wife did not tell him appears to be an element of the difficulties which we are facing in this matter.  I regret that given the vast bulk of other material in these proceedings and particularly evidence of Dr E, I am unable to accept the diagnosis of Dr S in these circumstances and I therefore disregard it. 

4. Another witness of great importance in these proceedings is Ms W.  She is a child and adolescent psychotherapist who has qualified in disability studies, health counselling and most importantly has a master of child psychoanalytic psychotherapy.  The child was referred to her from the Take Two programme to which I have referred for psychotherapy, the first referral being on 24 November 2009. The child has continued consulting with Ms W on a weekly basis with breaks during school holidays and on a few occasions with the husband.

5. Ms W prepared a report which is dated 25 January 2011 and is annexed to an affidavit by her sworn on 28 January.  It is significant that no counsel sought to cross-examine Ms W.  Her evidence accordingly goes unchallenged as the treating psychoanalyst and psychologist of the child.  Ms W’s report details very significant volumes of research which she has done together with interviews and reading of various other assessments including various documentation.  In the circumstances, I accept Ms W’s affidavit and evidence in its entirety, there not having been a submission to the contrary.

6. Initially, Ms W noted that:

   At referral there were concerns raised about the way in which [the child] engaged with her dolls talking with them or through them in a fantasy world as if they were real.

   The element of the child speaking through her dolls has as I think I have already noted been remarked on with concern by others.  Under the heading of major themes, Ms W reported-

   -   Utilising doll’s (sic) to communicate her needs, experiences and enact relationships in a safe way.

   -   Not having the experience of being understood or being able to communicate her thoughts, ideas and needs – a sense of ‘self’.

   -   A background of internalising the thoughts, opinions and ideas of her mother.

   -   Grief about not living with her mother and adjustment to, the change in her living environment since living with her father.

   -   Difficulties with socialisation with peer group, being able to deal with tensions and resolve differences with the assistance of teacher, her father and others.

   -   Conflicted feelings about her mother.

   -   Anxiety about expressing thoughts, ideas and opinions that differ from her mother.

   -   Distributed development.

   -   Accepting the authority and boundaries of her father and others.

   -   Difficulty in receiving praise for her achievements; self esteem.

   She then reported on a significant history and returning to the question of the dolls expressed the following opinion-

   It appears that the fantasy play with her dolls has become a way in which [the child] can act out relationships, conduct disagreements and thereby avoid dealing with and expressing any difficulties directly which produces too much anxiety and conflict. [The child] appears to display insecurity about how she feels and whether she is likeable as she is and is ambivalent about celebrating her achievements. While beginning to develop her own view, [the child] struggles to manage the internal conflict that is produced when her thoughts differ from that of her mother. [The child] has been able to disagree and argue with [the father] and demonstrate that she can test the boundaries and limits, disagree and argue with the writer during the assessment process.

7. Ms W then referred to the husband as having provided:

   …a safe, stable and loving home where [the child] has been supported to continue with her schooling and work through difficulties in a constructive manner.

   With regard to access arrangements, Ms W reported as follows-

   It has been indicated to the writer that when [the child] spent time with her mother on a weekly or fortnightly basis, she became anxious and worried about conflict, that is, about her activities and whether or not they would be sanctioned by her mother or whether they would be met with disapproval. This mainly appeared in the context of events which occurred on the day that [the child] attended Church or took part in activities outside the Church community. In contrast to this, [the child] has indicated to the writer her points of disagreement with her father without anxiety and in an environment provided by [the father] which is firm in boundaries whilst being gentle and supportive. [The child] is beginning to demonstrate her ability to think for herself, develop her ideas and disagree at times with parents or others, which is entirely developmentally appropriate. It is critical to [the child’s] development that she continues to build on the progress made since living with her father, socially, cognitively and emotionally in order for her to feel safe to develop herself as an individual as she makes her way towards early adolescence.

   Having considered the background information provided as well as the writer’s observations during the psychotherapy sessions, the writer is supportive of [the child] having an ongoing contact with her mother provided that is supervised and reviewed. It is the writer’s suggestion that [the child] meets with her mother not more than four times per year in addition to [the child’s] Birthday and [the mother’s] Birthday as a starting point. In the writer’s opinion, any increase to this arrangement at this stage is not in [the child’s] best interest and is a risk to [the child’s] ongoing progress and overall well-being with the attendant pressure to comply and align with the wishes and beliefs of her mother.

8. Finally, I refer to the report of Dr E which is annexed to an affidavit sworn by him on 11 February 2011.  Dr E is a frequent witness in proceedings before this Court relating to parenting orders and is a highly experienced consultant psychiatrist.  He was appointed as the single expert of the Court and his second report dated 1 February 2011 annexed to that affidavit is very comprehensive.

9. Again, I note that counsel sought not to cross-examine Dr E on that affidavit.  I have read it in detail on several occasions.  I find it to be credible, professional and comprehensive.  No submission has been made that I should not accept it and I accordingly accept it in its entirety.  Dr E expressed his opinion as follows –

   1.On this second occasion, [the mother’s] presentation was essentially unchanged from my first assessment. She remains subject to a Paranoid Disorder which prevents her from acting more insightfully in regard to her daughter’s best interests. Her views are entrenched and she continues to site various authorities as to the rights of children, as well as the Bible, in respect to the manner in which children should be raised, the essential tenet of which is that children need their mothers and should be raised in a Christian environment with them.

   All of this occurs in contrast to various agencies and individuals who have either assessed the family and [the child], or have been involved in [the child’s] treatment, which have indicated that [the child] is part of an enmeshed and over-involved relationship with her mother and has taken on many of her mother’s views related to others in a quasi adulto-morphic way, was socially affected as a result, with some noted delays in her development.

   2. Underlying much of [the mother’s] hyperbole was the apparent and persistent position that she wishes for her husband to return and for the family to be re-integrated into the structure that is previously was. It was her view that in the absence of this occurring, [the child] should remain in her sole care with restricted access being granted to her father.

   3. It is my clinical opinion that [the mother] continues to suffer from a Paranoid Disorder involving fixed and unshakable beliefs. She remains insightless in regard to the true nature of the relationship between herself and her daughter which has been described as enmeshed, and at that level, harmful to [the child]. In that respect, my view would accord with the recent Family Court Report of 14^th December 2010 that [the child] reside with her father and have supervised contact with her mother.

   4. Unfortunately, [the mother] is not having appropriate psychiatric treatment at this time. Whilst [Dr S] is entitled to his view, that report and opinion appears to be arrived at largely based on her representations to him and views of what has occurred in regard to herself and [the child]. As indicated previously, Paranoid Disorders are inherently difficult to treat. Given [the mother’s] presentation which has essentially been the same over the course of the two interviews and assessments that I have arrived at, the prognosis remains guarded in respect to her ability to act in her daughter’s interest due to her psychiatric condition. In the absence of any treatment, this situation is likely to continue.

   5. I have not interviewed [the father] or [the child] and my report needs to be read accordingly.

10. As part of the evidence before me, both parties together with the family consultant to whom I shall refer gave oral evidence.  The three of them were cross-examined and my findings with respect to credibility of the parties are largely based on that evidence together with the expert evidence to which I have referred in detail above.

11. There are several aspects of the wife’s evidence which have concerned me and which would appear in a lay sense from my point of view to corroborate the diagnosis of a Paranoid Disorder.  I have referred very briefly to the Transport Accident Commission of the State of Victoria.  I think it is approximately 30 years ago that the wife had an accident which entitled her to claim compensation from the Commission.  I referred to the TAC in the context of a dispute in the school yard.  The wife gave evidence that she had been approached and effectively accosted by a man whose name she didn’t know, whose identity she did not have and whose whereabouts she had no idea of who appeared to know a great deal about her which she opined could only have been obtained from the TAC file.

12. She found this an extremely disturbing experience.  There is no evidence as to the identity of the person or what was said or that the event itself actually occurred.  In the context of the whole of the evidence, I find to the relevant standard that the event did not occur at least as described and that the wife was not approached by somebody directly or indirectly representing TAC.  There may have been a confrontation in the school yard but, I believe, it had absolutely nothing to do with the TAC claim.  The wife gave oral evidence that she had written evidence that TAC had admitted that it had harassed her.  She had the opportunity overnight on Tuesday to provide that evidence.  She produced a report by Dr F who examined her on behalf of TAC which she said substantiated her claim.  It does nothing of the sort.

13. Despite being given a further opportunity, she was unable to produce further evidence and sought to use a number of documents which she asserted would enable me to infer the correctness of her proposition.  Her argument as to that inference had no merit whatsoever and I find on the relevant standard that there is no such admission.  The third matter to which I refer concerns DHS.  The wife alleged that two workers of DHS had on one occasion gone to the child’s school and amongst other things at least one of them had hit the child over the head causing headache and it would appear some identifiable injury on her head or face.

14. Apart from the inherent improbability of that proposition particularly happening at the school in broad daylight, the child was apparently taken at least to a doctor or hospital from where there is no evidence.  There is no corroboration and there is no witness.  As I have said just on its face, that allegation is extremely unlikely.  I find that it did not happen.  I accordingly find that the wife’s evidence in those regards cannot be relied on and particularly given the importance which the wife placed on those matters, I rely on those findings to extend to a general finding with respect to credibility.  In that regard, I also rely on the expert evidence which I have already referred to in detail.

15. I now refer to the legislation. In the first place, I must regard the child’s best interests as the paramount consideration in the proceedings. Paramount does not mean only or sole, it means most important. I then must have regard to the object and principles of Part VII of the Act in which this legislation is included and the principles underlying that. And I note that those objects and principles are specifically subject to my not finding that they are contrary to the child’s best interests. They include ensuring that the child has a benefit of both her parents, of protection from physical or psychological harm ensuring that children receive adequate and proper parenting and ensuring that the parents fulfil their duties and meet their responsibilities.

16. The principles include a child’s right to know and be cared for by both parents, right to spend time on a regular basis and the requirement that parents jointly share duties and responsibility, that parents should agree about future parenting and that a right to enjoy their culture.  I emphasise that they are subject to their being in the best interests of the child.  As I will develop, I regret to have to find that apart from anything else the issue of protecting the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or violence is one of the most important concerns which I have in these proceedings.

1. At section 61DA, the parliament has created a presumption of equal shared parental responsibility.  Parental responsibility is the making of decisions with regard to the upbringing of a child.  Subsection 2 specifically exempts the presumption from applying in circumstances of:

   Abuse of the child or another child who at the time was a member of the parents’ family or that other person’s family or family violence.

   Subsection 4 provides the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

2. Accordingly, the question remains as to what is in the child’s best interests.  In the event that the presumption applies, I am required by section 65DAA to consider equal time and if not equal time, substantial and significant time.  Essentially the best interests provision applies to my consideration of these matters together with issues of practicality on the basis of the way in which I propose determining this matter.  It is not necessary for me to go into further detail at this stage.  So it is clear that the essential inquiry is what is in the child’s best interests.  In that regard, section 60CC sets out primary and additional considerations to which I turn.

3. There are two primary considerations.  The first of them is the benefit to the child of having a meaningful relationship with both the parents.  Clearly, as a matter of principle that applies.  It would be a benefit to have a meaningful relationship with both of her parents.  However, it includes the second proposition, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  It is that provision which is of great concern.  The additional considerations in my determination of what is in the best interests of the child are many and I refer to them seriatim.

4. The first of them is any view expressed by the child and any factors such as her maturity that I consider are relevant to the weight to be given to those views.

5. With regard to the child’s wishes I first refer to the report of Mr B the family consultant which is dated 13 December 2010 and is evidenced before me.  Mr B was cross-examined in these proceedings and also relied on his report.  It is not suggested that I should discard Mr B’s evidence.  I was impressed with it and I accept it in its entirety.

6. Mr B referred to the child’s wishes as follows -

   37. [The child] advised that she lives with her father, having been “… taken away from my mum… they, the Department of Human Services thought she wasn’t looking after me properly…” Invited to offer her view about such matters, [the child] indicated “… I do understand about mum being sick, and she’s had some worries, and sometimes she is very worried about me and dad too… also she’s um very nice and kind, just the same as my dad, he’s nice…”

   38. Invited to reflect on her experience of living in her father’s care [the child], [sic] indicated that she feels very safe, and this is important for her, because she recognises she can’t look after herself, and so needs ‘a mum and a dad’. In respect of her school, [the child] was less positive, having the view that she is ‘bullied and teased’ by a student who is rude to her. Although she’s told both her teacher and her father about such experiences, these incidents do little to positively influence [the child’s] view of attending school. Unfortunately, she is left feeling that she “… doesn’t really like school, [and feels she] can’t cope… [and her peers]…are rude and have no manners… [towards her]”

   39. In respect of her relationship with her mother and her father, [the child] recalled positive feedback being given to her by both her parents. For example, her father tells her that she is ‘a really good girl’ and her mother echoes that sentiment, referring to [the child] as ‘a wonderful girl’. [The child] recalled that her mother “… wants her back, and wants to spend time and fun with [the child] and do fun things with [her] and meet all [her] friends again… [the child doesn’t] want to be apart from her, we should be together again it’s fair then…” [the child’s] latter comments, in relation to her mother telling her she wants her returned to her care suggests that [the mother] continues to lack insight about her current circumstances, and in particular, demonstrates her inability to make sound judgements about what she should discuss with her daughter, in order to foster [the child’s] [sic] best interests.

7. Mr B’s report contains material which I find very poignant.  It is quite extraordinary that a when slightly less than 10 year old child should be able to identify that her mother was “sick”.  Now, there is sufficient material to infer that she would not have necessarily come to that on her own but by the same token there is no evidence to suggest that she has been coached in it.  I believe it is a collection of a number of different factors which have lead her to that view.  Essentially as I regard the evidence, the child would love to see more of her mother but is concerned about her.

8. She feels that her father offers her a stable, secure and protective environment and she feels safe with him.  The entirety of the evidence satisfies me that the child does not feel safe with her mother.  As far as her wishes are concerned, the child is expressing a wish to be with her mother but her mother is going to need to change in order for that to mean something important.  Turning to the next factor that also impacts on the nature of the child’s relationships with her parents.  She doesn’t feel safe with her mother and as a result in my view the relationship between mother and daughter is flawed.

9. Those flaws are further illustrated by the matters raised particularly by Ms W, by Bethany and by other experts who have observed the child and particularly those who commented on the child’s use of dolls through whom she talks.  I do not accept the mother’s proposition that it is usual for a child to speak through dolls in this way.  It is clearly usual for children to have fantasy play with dolls but not in this way and as commented on adversely and with concern by so many experts.  Moving to the next factor, I am satisfied that both parents would facilitate and encourage a close and continued relationship between the child and each of them but that has to be qualified by the husband’s need to protect the child from harm.  The facilitation to which this provision refers is qualified by that fact.

10. The next provision is what is sometimes referred to as the status quo which is very strongly in favour of the husband’s care of the child.  He is doing a very good job and upsetting that would be very concerning.  There is no practical difficulty or expense of the child spending time and communicating with the parents save for what might become some time in the future an expensive supervision.  The next matter is:

    The capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

    It is with the greatest regret that I need to find that the wife cannot provide the psychological and emotional needs and probably the intellectual needs of the child.

11. I find that the diagnosis by Dr E of Paranoid Disorder is correct and I find that that directly and fundamentally impacts on the wife’s parenting of the child and her ability to provide for her needs.  The next question is that of background lifestyle and like things.  In that regard, there is a very significant difference between the parties on matters of religion.  The wife is an adherent of the Seventh-day Adventist religion while the husband does not have any apparent religious affiliation.  It would be nice for the wife to have the opportunity to provide some religious education for the child but it needs to be subject to the matters which I am discussing.

12. It is equally regrettable then that the attitudes to the child and the responsibilities a parent would demonstrate by each of her parents is so different.  I am sorry to have to say that the wife’s attitudes in that regard with no malice and no intent are contrary to her best interests.  While there was a slight suggestion during the final address of counsel for the wife of the adjournment of these proceedings that is not an option and I am going to make final orders.  The fundamental difficulty in this case as I have said before is the fact that the wife suffers from Paranoid Disorder.  That impacts directly, fundamentally and profoundly on the child and allowing the wife to have anymore than minimal time with the child is totally contrary to the child’s interests.

13. As stated by Dr E, one of the great difficulties of Paranoid Disorder is a refusal by the sufferer to concede the suffering that is clearly the case here and the suggestion by the wife that she would go to a psychiatrist nominated by the independent children’s lawyer and would consider a position if there are diagnoses accordingly, is simply nowhere near sufficient in the child’s best interests.  She needs to make a concession and act on it with very significant therapy.  While she might believe that she can do that in a matter of a few months.  In my view, that is a very lengthy process indeed and I regret to have to find that it is very unlikely that it can be done in anything more than a very extended time.

14. Referring then back to the legislation I find that it is contrary to the best interests of the child that the parents should share the parental responsibility of her and I accordingly determine that the husband will have the sole parental responsibility.  Likewise, I then find that it is not necessary for me to consider equal time, shared and equal time or substantial and significant time but I specifically find that it is equally contrary to the best interests of the child.  As recommended by Ms W and affirmed by Mr B, approximately six periods of several hours is the appropriate amount of time and I will order accordingly. 

15. The supervision will be by the husband for the purpose of Christmas Day and otherwise by two accepted supervisors Mr K and Ms K who are on affidavit, or at least Ms K is on affidavit and who everybody accepts is an appropriate supervisor.  I will empower the parties to agree on an alternative supervisor but given the nature of these proceedings, such agreement will need to be in writing.  Likewise, any other type of adjustment to these orders can be made but it needs to be on the basis written agreement signed by the parties.

16. Likewise, as a result of my findings as to the risks to the child I will restrain the wife from attending any school but allow her to obtain school photographs and I will require the husband to advise her of any health problems or issues that require hospitalization.  I will restrain her from communicating with the school or the child or attending any residence, business or other place for those purposes, discussing any issue with her, showing her any relevant document relating to these proceedings and from taking her to any psychologist, social worker, medical practitioner or a like professional.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 3 March 2011.

Associate: 

Date:  21 March 2011