WELK & MIDDELSTADT

[2017] FCCA 3009

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELK & MIDDELSTADT [2017] FCCA 3009

Catchwords:
FAMILY LAW – Parenting – child aged 8 who has been living with her maternal grandmother for four years – where the mother has longstanding mental health issues – where the mother seeks orders that the child spend unsupervised time with her on alternate weekends and during school holidays – where the grandmother proposes that the child spend supervised time with the mother on four occasions each year – where determining an appropriate order is difficult given the mother’s underlying personality disorder, propensity to form destructive relationships and intermittent episodes of acute mental illness requiring involuntary admissions to hospital – where the ideal arrangement would be time as agreed between the mother and the maternal grandmother but where the mother will not accept this.

Legislation:

Family Law Act 1975 (Cth), ss.60CC

Mazorski & Albright [2007] 37FamLR
Welk & Porter & Anor [2014] FCCA 3216

Applicant: MS WELK

Respondent: MS MIDDELSTADT

File Number: PAC 5482 of 2012

Judgment of: Judge Terry

Hearing dates: 19, 20 and 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Newcastle

Delivered on: 2 November 2017

REPRESENTATION

Counsel for the Applicant: Mr Boyd

Solicitors for the Applicant: AW Simpson & Co

Counsel for the Respondent: Mr Bithrey

Solicitors for the Respondent: APJ Law

Counsel for the Independent Children’s Lawyer: Mr Bateman

Solicitors for the Independent Children’s Lawyer: Emalene Gemmell & Associates

ORDERS (As amended 21 November 2017)

1. X born (omitted) 2009 (“the child”) shall live with the maternal grandmother Ms Middelstadt.

2. The maternal grandmother shall have sole parental responsibility of the child.

3. The child shall spend time with the mother:

   (a)For 2 hours on the last Sunday of each month which shall unless otherwise agreed to by the maternal grandmother be from 10.00am to 12.00pm.

   (b)For 2 hours on the child’s birthday which unless otherwise agreed to by the maternal grandmother be from 10.00am to 12.00pm;

   (c)For 2 hours on Mother’s Day which unless otherwise agreed to by the maternal grandmother shall be from 10.00am to 12.00pm;

   (d)For 2 hours on the mother’s birthday which shall unless otherwise agreed to by the maternal grandmother shall be from 10.00am to 12.00pm;

   (e)At such additional or alternate times as may be agreed to by the maternal grandmother.

4. Unless otherwise agreed by the maternal grandmother all such times shall be supervised by Ms R or another person nominated by the maternal grandmother and shall take place at a location suitable to Ms R or the alternative supervisor.

5. The child’s time with the mother shall be suspended during any period when the mother is an inpatient at any mental health unit or any hospital.

6. The mother may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents BUT SHALL NOT attend events at the child’s school normally attended by parents unless the maternal grandmother agrees in writing prior to the event that the mother may attend.

7. The maternal grandmother shall promptly advise the mother in the event of the child being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness BUT unless authorised by the maternal grandmother in writing the mother shall not attend at the hospital to visit the child.

8. The mother and the maternal grandmother shall keep each other informed of their residential address and/or fixed or mobile telephone number and notify each other of any change to these details within 7 days of the change occurring.

9. The mother is restrained from:

   (a)Removing or causing the child to be removed from the maternal grandmother’s care;

   (b)Removing or causing the child to be removed from or any school or extracurricular activity attended by the child;

   without the prior written consent of the maternal grandmother.

10. The mother and the maternal grandmother are restrained and an injunction is granted restraining them from denigrating the other party or any member of the parties’ family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.

11. For 6 months for the personal protection of the paternal maternal grandmother the mother is restrained from, other than in accordance with these orders from:

    (a)Communicating with the maternal grandmother;

    (b)Approaching within 100 metres of the maternal grandmother;

    (c)Attending the maternal grandmother’s residence;

    (d)Attending the child’s school.

12. The child’s father Mr M shall have no communication or contact with the child.

13. The Independent Children’s Lawyer’s application for costs is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 5482 of 2012

MS WELK

Applicant

And

MS MIDDELSTADT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves a dispute about parenting arrangements for X, aged eight.  I am going to call her X in the judgment because that is what the parties call her and the parties are the child’s mother, Ms Welk, and her maternal grandmother, Ms Middelstadt. 

3. X has not had an easy life.  After her birth she lived with her mother and her father Mr M. The mother has had mental health issues since her early teens and has required inpatient treatment from time to time. She also has a history of forming relationships with unsatisfactory men of whom Mr M was one, and as a result the first four years of X’s life were not easy. 

4. Parenting proceedings were commenced in the Federal Circuit Court at Parramatta in December 2012. Judge Dunkley handed down a decision in those proceedings in 2014 and he said as follows about X’s life to that point:  

   X has had a disrupted childhood.  She has been cared for at various times by her mother, father and maternal grandmother.  There have been parenting orders relevant to her in the Melbourne Magistrates Court, in courts in Queensland, in Children’s Courts in Melbourne and in this Court.  The child has spent time with the father and mother pursuant to orders of this court but since June 2013[1]X by order of this court has predominately lived with her maternal grandmother. On occasions there has been need for recovery orders to be applied for when the father did not comply with parenting orders. Throughout the course of the proceedings the mother has struggled with her mental health and has now for a long period of time been an involuntary patient at a mental health facility.

   [1] The grandmother identified it as being since August 2013 in the current proceedings.

5. The maternal grandmother referred in her affidavit to the difficult road X travelled in her early years. She said as follows:

   Prior to this time X has had an extremely unstable life when she was intermittently cared for by me, by her mother and her father and also spent some time in foster care. 

6. The matter was listed for final hearing in Parramatta in April 2014. The mother did not appear because she was an involuntary patient in (omitted) Mental Health Unit in (omitted) and the father did not appear because he had been arrested for the indecent assault of a young child, an offence for which he was subsequently convicted. Judge Dunkley said as follows about that:

   The offence for which he has been convicted is a particularly egregious offence in that he touched a child of primary school age who was travelling from her school by public transport by grappling with her genital area. There is CCTV footage of him engaged in that act. There is CCTV footage of him being tracked on leaving that bus.[3]

   [3] Welk & Porter & Anor (Supra)– Paragraph 21

7. The only person who appeared at the hearing was the maternal grandmother and as a result Judge Dunkley made orders that all prior parenting orders be discharged; the grandmother have sole parental responsibility for X; the child live with her, and the child spend no time with her father and spend time with her mother by arrangement and agreement between the mother and the grandmother.

8. Judge Dunkley could not have made any other order about the mother’s time given that she did not appear in court and was in a mental health unit.

9. After the mother was released she was able to reach agreement with the grandmother about spending time with X and it appears to have happened reasonably frequently, several times a week. The maternal grandmother was usually present but the parties did agree on some unsupervised time.

10. The parties attended mediation in March 2015 and reached agreement for the mother to spend time with the child three times a week with the grandmother present but unfortunately the mother’s time with the child broke down fairly soon after that. On 16 June 2015 the mother made what in hindsight was an ill-judged decision to file an application seeking to have the existing orders discharged and orders made that she have sole parental responsibility and that the child live with her and spend time with the grandmother on one Sunday each month.

11. Following that and also because of some concerns the grandmother had about mother’s situation at that time, which in my view reading the subpoena material and police reports had a basis, the grandmother went back on agreement reached at mediation and began facilitating time at best on only one Sunday each month.

12. When the mother’s application was filed both the mother and the grandmother were living in (omitted) and the mother’s application was filed in the Federal Circuit Court at Newcastle and came before me.

13. In November 2015 I made an order for the mother to spend time with X for two hours per fortnight at a contact centre. Unfortunately the only available contact centre was in (omitted) which meant that the mother and grandmother and X had to travel so that time could occur.

14. The mother continued to press for a change of residence and a family report was ordered. It was released in January 2017. No agreement was reached after the release of the report and in March 2017 the matter was listed for final hearing in October 2017.

15. On (omitted) 2017 the mother was admitted to (omitted) Private Hospital in (omitted) as an involuntary patient. She was discharged on (omitted) but was readmitted on (omitted) and there is a comment in the hospital notes that following her release on (omitted) she did not take her medication. She was released again but on (omitted) was readmitted following several bizarre incidents involving the maternal grandmother.

16. The maternal grandmother said that in the early hours of 16 June 2017 the mother came to her house on two occasions. On the second occasion she yelled loudly, “I know you have hanged X and I am going to the police.” The grandmother said that X heard the yelling and was confused by the words.

17. At 3.00pm the same day an ambulance arrived at the maternal grandmother’s home and the ambulance officers said that they had been told to take the grandmother and X to hospital. The grandmother assumed that the mother had organised that, not unreasonably in my view given material in the police records about other incidents that had occurred in the past.

18. The grandmother said that the mother subsequently admitted calling the ambulance and said that she wanted the maternal grandmother taken to (omitted) Mental Health Unit.

19. Then on 19 June the grandmother received a bizarre text message from the mother saying:

    Hello. (omitted) is on a X warpath again. Psychopath.[4]

    [4] Paragraph 37 of the maternal grandmother’s affidavit.

20. Later on 19 June the mother was taken to the local hospital and admitted. She was transferred to a mental health unit in (omitted) and remained there until 28 July when she was released on a six month community treatment plan. Dr H said that this meant that she would be administered medication by injection, so that during the six months that she was on the plan there was a guarantee that she would take her medication.

21. Dr H is a Forensic Psychologist and the mother saw her in August 2017 for the purpose of obtaining a report about her mental health. Dr H expressed a very strong view that the mother was not suitable to be X’s primary carer and on 4 October 2017, several weeks before the trial was due to commence, the mother filed an amended application in which she no longer sought residence but sought an order for defined time with X on alternate weekends and during the school holidays.

22. The mother also sought an order for what she called joint parental responsibility, which I take to mean equal shared parental responsibility with the grandmother.

The evidence

1. The mother gave evidence in her case as did her friend Ms C and Ms K, her treating psychiatrist Dr A and Dr H who prepared the psychiatric report.

2. The maternal grandmother gave evidence in her case as did her friend Ms R.

3. A family report was prepared by Ms A, a Regulation 7 family consultant.

The parties proposals

1. The issues in dispute at trial were the allocation of parental responsibility, the time X should spend with the mother and the extent to which that time needed to be supervised.

2. The orders sought at the end of the trial were as follows.

3. The mother changed her position about parental responsibility and proposed that the grandmother have sole parental responsibility subject to being required to consult with the mother before making a decision. She proposed that X spend time with her each alternate weekend from Friday to Monday during school terms, for five days in the shorter school holidays and for two separate seven day blocks during the Christmas school holidays.

4. The mother sought an order for telephone communication twice a week, and proposed that she provide the grandmother with information about her compliance with medication and treatment and also specific information if she was hospitalised.

5. The mother sought liberty to attend school events and proposed that her time with X be suspended if she was hospitalised.

6. The maternal grandmother sought an order for sole parental responsibility and proposed that the child spend time with the mother four times a year supervised by the maternal grandmother’s friend Ms R.

7. The Independent Children's Lawyer supported an order for sole parental responsibility and proposed that initially the child spend time with the mother each alternate Sunday for two hours and on some special days supervised by Ms R or another agreed person.

8. The Independent Children’s Lawyer proposed that after 12 months the mother commence spending unsupervised time with the child from 9.00am to 3.00pm each alternate Sunday and on special days. She proposed that after six months this progress to unsupervised time each alternate weekend from Friday to Sunday and for one week in each of the school holidays.

9. The Independent Children’s Lawyer proposed that the mother ensure that the maternal grandmother received information about her mental health and that time be suspended if the mother was an inpatient. She proposed an order that the mother not attend at the school and that there be telephone communication each Wednesday.

10. These proposals were discussed during the course of submissions and of course the court is not bound by the proposals of the parties.

X’s circumstances

1. Before turning to the issue of X’s best interests, I want to consider X’s situation and the mother’s situation and then the mother’s mental health and substance use history.

2. X is 8. She has lived with her grandmother since August 2013, in other words, for over four years now. She attends The (omitted) School and is very settled and happy in the grandmother’s care.

3. At the family report interviews in December 2016 X expressed some views and did some drawing and the Family Consultant said as follows:

   X now 8 came to the interview with the maternal grandmother. She appeared to be well dressed, well cared for and was articulate. She was observed with the maternal grandmother and with the mother. X was less structured when observed with the maternal grandmother. She focussed on drawing and abstract issues. It was apparent that she was well aware that she played a significant role in her grandmother’s life. It is probable that X can manipulate her grandmother.

   When observed with the mother X greeted the mother with considerable warmth and appeared to be aware that this was an important interview. She discussed school and holiday activities with the mother who responded to her with some warmth.  The mother made appropriate responses to X and X sat close to her. She maintained good eye contact with the mother and discussed (omitted) her new friend.  She was not distressed when leaving the mother or the maternal grandmother.

   X was somewhat restless during her interview she hid under the table and ‘said watch me’ she repeated this several times during her interview. It is possible she was trying to deflect from answering questions.

   X was asked to draw a family portrait and included the maternal grandmother and significant animals. The mother was not included in the portrait. The father was not included in the portrait. It was an age related drawing but was completed with a black texta. She discussed the components of this drawing with warmth. She likes living with the maternal grandmother and likes to see her mother.[5]

   [5] Family Report paragraphs 110 to 113

4. The maternal grandmother is 64. She is a retired (occupation omitted) and is in good health. She is in receipt of Centrelink benefits. She has two other children who live independently and according to the maternal grandmother have stable lives.

5. The mother has at various points during her life and even, I think, to Dr H, made allegations about the grandmother in relation to alcohol consumption and mental health but there is nothing to suggest that the grandmother’s parenting capacity is impaired by issues to do with alcohol consumption or mental health.

6. The grandmother has arranged counselling for X. She is currently seeing Ms M.

7. There is no one else living in the grandmother’s home.

8. I was impressed with the maternal grandmother. During final submissions the mother’s counsel said that I should be critical of her for not shielding the child from the dispute with the mother and for her attitude to the child’s spending time with the mother. I will comment on that later but the grandmother impressed me as a calm, thoughtful person who was doing an excellent job caring for X.

9. The mother should reflect on the fact that but for the maternal grandmother this child would have been in care in 2014, when her father was arrested for child sex offences and her mother was in (omitted) Mental Health Unit. Who would have cared for the child if the maternal grandmother hadn’t been available? But she stepped in and she is doing an excellent job looking after the child.

10. I am satisfied that X is being safely and securely cared for and has been for the last four years after a very difficult first four years. I am abundantly satisfied that it is appropriate to make an order that she live with the maternal grandmother, as the mother eventually conceded should happen.

The mother’s circumstances

1. The mother is living in a rented two bedroom unit in (omitted). She separated from her partner Mr L in early August 2017 and is currently living alone.

2. The mother is a (occupation omitted). She was working at a (employer omitted) prior to her admission to a mental health unit on (omitted) this year and she now has to satisfy the (employer omitted) that she should be allowed to return to work. One of the tendered documents suggested that the (employer omitted) had been involved in relation to the mother’s career since 2011 and had imposed restrictions on her registration in the past.

1. The mother is currently on a disability support pension but she hopes that she will be able to return to work although it will be under supervision for a period of time.

2. A consideration of the mother’s mental health and substance abuse history is integral to the decision I have to make. Some of what I am about to say will be distressing for the mother and if Mr S wishes to have the mother absent herself from the room while I go through this he is welcome to do so but I have no option but to go through it.

3. The mother told Dr H that her mental health problems began when she was 12 and that she had tried to drown herself when she was 13.

4. The mother has a drug use history of considerable length and Dr H referred to that at paragraph 33 of her report. Dr H said that the mother began using drugs at 13 when she was at school and used marijuana before moving on to ecstasy, speed and heroin (injected).

5. The mother told Dr H that between the ages of 21 and 25 she was a heavy user of other recreational drugs and was using tabs, snorting speed and smoking. She said that she decided at 25 to stop all illicit drug use but she also said that she had used ice a few times socially in Melbourne when X was a baby and she would have been in her 30s then. She claimed that only occurred when X was not in her care.

6. In one of medical reports in 2017 someone questioned whether the mother’s presentation might be due to ice use but there is no evidence that the mother is using drugs or has been in the recent past.

7. The mother has consumed alcohol problematically over the years. Excessive use of alcohol, very excessive use of alcohol, is mentioned in police reports made in connection with their attendances at the mother’s home in 2015 because of disputes between her and Mr L and it is not only Mr L who is reported to have been drinking heavily.

8. The mother claimed that in the last year and a half she had completely abstained from alcohol. That may be correct. There was no investigation in the matter into the mother’s alcohol consumption during these proceedings and the best I can say is that she has a history of excessively consuming alcohol at times in the past.

9. The mother has made a number of suicide attempts.

10. In 1995 when she was 19 the mother was diagnosed with bipolar although there appears to be a question mark over whether that was an appropriate diagnosis.

11. The mother had her first inpatient admission to a mental health unit when she was 27. She was diagnosed with borderline personality disorder and drug induced psychosis. She had another admission in 2003 and was diagnosed with schizoaffective disorder.

12. In 2009 the mother was admitted to a clinic in Melbourne and diagnosed with bipolar and postnatal depression.

13. In 2011, when she was admitted to (omitted)’s in Sydney, there was again a reference to bipolar.

14. A doctor who prepared a report in May 2013 referred to the mother as having had a background of unstable relationships, severe anxiety, impulsivity, self-harming, angry outbursts and hyper-reactivity of mood and a history of psychosis lasting a few days to a week, generally drug induced.

15. In 2013 the mother was admitted to a mental health unit twice, first to (omitted) in (omitted) and then to (omitted)’s in Sydney in November of that year. The notes in relation to her admission to (omitted)’s record that she was verbally and physically aggressive and was psychotic and threatening and mention is made that there was evidence of thought disorder. 

16. The mother was discharged from (omitted) with the support of the maternal grandmother and the mother’s friend Ms C, one of the people who gave evidence before me, and she returned to (omitted). However she then had a further admission to (omitted) and a further admission to (omitted)’s and then back to (omitted) until she was finally released on (omitted) 2014 with a community treatment order.

17. The mother had no further acute mental health episodes that required admission to hospital until (omitted) 2017. She was then in and out of mental health units until 28 July. She is currently on a community treatment order which is due to expire in January 2018.

18. In her affidavit the mother made a point of the fact that she had admissions to mental health units in 2013/2014 and then again in 2017 as if this meant that between those admissions all was well. However the admissions are only one manifestation of the chaotic state of much of the mother’s adult life.

19. I am not going to articulate all of this now but I am going to include in my settled reasons, because it is important, a summary of the information in Dr H’s report about the issues in the mother’s life including allegations of rape, a boyfriend committing suicide, family violence and moving around to several different states.

20. [This information is provided as referred to above]

    The maternal grandmother and maternal grandfather separated when the mother was about four. The mother reported that her step-father was unkind, violent and sexually inappropriate towards her although she was unspecific about the form the sexually inappropriate behaviour took other than “pornography.” [The maternal grandmother did not concede that this was accurate]. She reported that at 19 she was raped in a (omitted) where she was working but her employers did nothing. Shortly afterwards the maternal grandmother took her to a psychiatrist who diagnosed Bipolar Disorder.

    In 2000 when the mother was 25 her grandmother and great uncle died and her boyfriend overdosed on heroin. She was date-raped and shortly thereafter attended a wedding in (omitted) with her father, staying at the same motel. She woke up distressed and confused thinking that her father had sexually assaulted her overnight. She attended at hospital displaying paranoid thinking and was prescribed Risperidone (used to treat schizophrenia and bipolar).

    In 2003 the mother experienced another sexual assault and had another hospital admission and reported a violent argument with the maternal grandmother. She was diagnosed with an emotionally unstable personality and bipolar and given lithium. She reported seeing resemblances between objectively random people and her rapist which would result in panic attacks.  She could not find work or maintain jobs and said she was frequently fired because of low energy, symptoms of depression including apathy and low mood, lassitude and phobic avoidance of any people or situations which reminded her of her stepfather or her three rapists.

    When well enough she returned to studying for her (qualifications omitted) in (occupation omitted) and lived with her mother. However after a major argument with her mother she was homeless for 6 weeks from September 2007 and missed her final exams

    In 2008 she finally finished her (omitted) studies. She met X’s father Mr M at this time and during most of 2008 was pregnant. She reported feeling better and said that she did not drink and take drugs until the very end of her pregnancy.

    At or around the time of X’s birth in (omitted) 2009 the mother moved to Melbourne and at the end of 2009 had another mental health crisis. She attended counselling weekly and a worker came to the house to ensure that she was coping with the care of the baby. The father would come and go but she described a chaotic and upsetting relationship with the father during which he was frequently abusive and on 2 occasions attempted to choke her.

    At the end of 2011 the mother had a hospital admission and X went into foster care and later into the care of the grandmother. The mother, grandmother and child moved to (omitted). The mother told Dr H that for about 6 months after this she was coping at nearly 70% of her normal capacity although she had a sad mood, frequent suicidal thinking, self-harm impulses, poor appetite and felt like going back to hospital.

    Then the father came to (omitted) and took X and went to Sydney with her. The mother commenced court proceedings in Parramatta and orders were made providing for both parents to spend time with X but handovers usually ended in a screaming match.

    In late 2013 X was placed with the grandmother by court order and the mother cut her wrists with a knife and took an overdose of prescription medications. She was admitted to (omitted)’s in a delusional state.

    The mother also claimed that in 2013 she was raped by the father who had been stalking her. She said that she reported it to the police who did nothing and she had several health mental health crises during 2013.

    In 2014 the father was charged with child sex abuse offences and the mother took out an ADVO against him alleging that he had threatened at handover to kill her and X. She also alleged that X told her that the father had hurt her vagina.

    After her final release from (omitted) in 2014, the mother moved to (omitted) and commenced a relationship with Mr L. She reported that she separated from him in or about April 2017 because he was emotionally abusive, coercively controlling and would threaten to commit suicide if she left him.

    The mother’s most recent hospital admission was in June 2017 and she said that it was because she felt overwhelmed and became paranoid/delusional – for example accusing her GP of being a psychopath who was trying to steal her child. She blamed her disordered thoughts and dysregulated emotions on a combination of factors notably the stress of the relationship with Mr L and drug interaction between a contraceptive implant and Aripiprazole (a prescribed anti-psychotic).

    After her discharge in late July 2017, the mother returned briefly to Mr L. Shortly afterwards they had a row and he destroyed her property, smashing her computer and a photo of X. The mother said that Mr L was screaming at her and was horrible and that police encouraged her to apply for an ADVO. Her friend Ms K collected her from Mr L’s home.[6]

    [6] Summarised from paragraphs 12 to 26 of Dr H’s report

21. Further to Mr L, he is an alcoholic and while the mother lived with him there were occasions when the police were called to their home and occasions when the mother indulged in self- harm.

22. One occasion when the police were called was on 7 January 2015, which is interesting, because in her affidavit the grandmother said that she noticed changes in the mother in early 2015. There is another police report in October 2015 which is troubling and refers to the mother having drunk very heavily. There is another police report in December 2015 and that was the one where the mother was reported to have impulsively taken an overdose of drugs, not with the intention of committing suicide.

23. The admissions therefore only present part of the picture about the difficulties in the mother’s life. There has been an extensive amount of chaos and difficulty in her life.

24. One of the problems in this matter is that the mother sometimes doesn’t remember things about her own behaviour, even things which have occurred not very long ago. She does not remember going to the grandmother’s house in June 2017 for example. She said that after she read the grandmother’s affidavit she checked her phone messages and confirmed that what the grandmother said had happened was likely to be true but she still does not remember what happened.

25. The mother told Dr H that she recommenced her relationship with Mr L when she got out of hospital in late July 2017 because she didn’t remember all the bad things about him, and it had only been three months since she lived with him.

26. The mother is currently seeing Dr A, a psychiatrist, and Mr R, a psychologist. She is medicated but Dr H commented that an advantage of the community treatment plan was that the mother was being injected and therefore was certainly taking her medication. Dr A conceded that the mother was not always compliant with taking medication.

27. As for the mother’s diagnosis that is a complex and difficult issue as Dr H identified in her report.

28. One of the mother’s treating doctors referred to her as presenting a diagnostic dilemma and Dr H referred to various diagnoses that have been made of the mother over the years in her report and went on to say as follows:

    Apparently, Ms Welk has received various diagnoses over the years, and professional opinion has varied as to whether she suffered from Bipolar Disorder (with transient psychosis), Borderline Personality Disorder (with transient psychosis), or a psychotic illness. At least one psychologist is said to have mooted Posttraumatic Stress Disorder, although this aspect of her clinical presentation seems to have often been overlooked in treatment planning. She was diagnosed with Schizoaffective Disorder in 2015 or 2016, and co-morbid Substance Dependence Disorder has been suspected. Psychiatrist Dr A reputedly disputes these last two diagnoses and favours a diagnosis of Borderline Personality Disorder.[7]

    [7] Paragraph 55 of the Expert Report.

29. Dr H referred to the possibility of the mother having a Cluster B Personality Disorder of which Borderline Personality Disorder is part. It was certainly her view that whatever the diagnosis of the mother may be, she showed signs of having a personality disorder with prominent borderline traits.  

30. In summary the mother has acute mental health episodes which require her to be hospitalised but the underlying personality disorder is always there and in her report Dr H referred to the hallmark features of borderline personality disorder. She said as follows:

    Hallmark features of BPD include emotional dysregulation – particularly in response to perceived denigration, rejection or abandonment – and stress intolerance – which may be associated with use of maladaptive means, such as substance abuse, to reduce tension, and with suicidal despair/attempts under stress. Although Ms Welk claims that substance abuse between ages 13-25 kept despair and agitation at bay, this drug use could well have caused lasting neurological harm which increased her tendency to mood instability and psychotic episodes. In addition, she reports repeated re-victimization in adulthood – several rapes and violence/oppression in virtually all her domestic relationships – such that some PTS symptoms (high anxiety, phobic avoidance, irritability, hypervigilance for threat/overreaction to objectively benign events, panic) which relate to specific traumatic events (sexual and physical abuse) exacerbate the distress intolerance and emotional dysregulation due to underlying PD. She describes psychiatric crises triggered by adverse life events (particularly threats to attachment relationships) which layer acute feelings of despair over her background state of high anxiety, stressing her to the point where she loses contact with reality and/or makes suicidal gestures.[8]

    [8] Paragraph 57 of the Expert Report.

31. Importantly after talking about borderline personality disorder and the mother’s medication she said:

    Medication cannot address the maladaptive borderline personality traits which significantly impede the mother’s parenting capacity.[9]

    [9] Dr H’s report paragraph 61

32. It is against this background that I must consider what to do with the various proposals concerning X spending time with her mother.

X’s best interests

1. To determine X’s best interests I must have to have regard to the primary and additional considerations in s.60CC (2) and (3) of the Family Law Act.

2. The primary considerations in s.60CC (2) are contained in (a) and (b) and the first of those is the benefit to the child of having a meaningful relationship with each of her parents.

3. X’s father will never be part of her life. He has been convicted of sexually abusing a child under 10 and is on the child sex offenders register. The only parent the child has any ability to see regularly is her mother and her mother has qualities which are valuable and provide valuable role modelling for the child.

4. The mother is well educated. She has good (omitted) qualifications. She is able to participate well in the workforce at times. She is very personable; Dr H commented on that and it was obvious in the witness box. The mother has things to offer the child. She has related well to the child at the contact centre. 

5. The mother is the only parent in the child’s life and it is self-evident that if the child only sees her four times a year as the grandmother proposes she will not have a meaningful relationship with her.

6. I do not accept that the grandmother has failed in the past to support the relationship between the mother and the child. All of the evidence suggests to the contrary. She has persisted under very trying circumstances in trying to ensure that the mother and the child have a relationship. She has taken the child to the (omitted) Children's Contact Centre for 18 months. There have been the occasional and in my view excusable missed visits, but that is all they have been.

7. There is nothing to suggest in the way the child interacts with the mother that the grandmother is critical of the mother when the child is solely in her care and I do not accept that the grandmother has failed to support the relationship. In my view she has at all times in her decision making been appropriately protective of the child.

8. However if the child only sees the mother four times a year she will not have a meaningful relationship with her. She will have a relationship with her but it will not be a meaningful one.

9. More extensive supervised time as proposed by the Independent Children’s Lawyer may result in the mother being a person who is significant, important and valuable to the child[10] but unless the time moves on to being unsupervised, as the Independent Children’s Lawyer also proposed, the mother is still not going to be a person of great significance to the child.

   [10] Mazorski & Albright [2007] 37FamLR

10. The mother would no doubt argue that it is important that overnight or extended unsupervised time be ordered because that will give greater scope for her to have a caring, guiding, nurturing role in the child’s life.

11. However one of the things I am going to have to consider is whether the mother is capable of fulfilling that role and I am also going to have to consider the risk to the child of the mother decompensating or becoming acutely mentally ill or even having one episode in the child’s presence because if that occurred it might mean the end of any chance of the child of having a relationship with the mother, let alone a meaningful relationship.

12. I must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

13. The mother has never harmed X directly. It would appear however, as Dr H sets out in her report, that X was exposed to some family violence of handovers between the parents. The mother also alleged that there was some other family violence in her relationship with the father, but as Dr H commented, it is unclear if the child was exposed to that.

14. I have a residual concern about what could happen to the child in the mother’s sole care because of the comments by the maternal grandmother, which I cannot discount because of what is in the subpoena records that have been tendered, that the mother can be aggressive if unwell. I mentioned earlier the (omitted)’s admission where the mother was noted to be verbally and physically aggressive. There is a risk of X being exposed to family violence in the mother’s care if the mother is unwell.

15. There is also a risk to X of being exposed to family violence in the mother’s care if she is in a relationship with someone like the father or Mr L.

16. The problem in this matter is that there may be no risk if the mother is well and considerable risk if she is unwell, but who is to judge where on the spectrum she is at any particular time?

17. Another problem is that in one of the police records there is a suggestion that on one particular occasion – I think it was an occasion before the mother was admitted to (omitted)’s – a problem erupted very suddenly at 2.00am which led to the mother’s then partner calling the police and an ambulance.

1. The mother proposed various means to let the maternal grandmother know if she was unwell. She nominated her friend Ms K as someone who would contact the grandmother if she became unwell but she did not reveal in her affidavit that Ms K had also been diagnosed with schizoaffective disorder. That only emerged during cross-examination, so I have reservations about whether it is reasonable to trust in Ms K to make a decision about whether the mother is unwell and then tell the grandmother.

2. During closing submissions the mother’s counsel was permitted to tender a letter from a social worker, Ms M, who it was suggested was an alternative person who could contact the grandmother if the mother became unwell, but in that letter Ms M said she would tell the maternal grandmother what the mother authorised her to tell her so that does not really provide any protection.

3. I also have a considerable concern that the mother might try and hide from her mother any knowledge that she was on the brink of having an issue because of fear of losing time with the child.

4. I recognise the benefit to X of having a meaningful relationship with her mother but I am of the view that it is open to question whether that is necessarily going to be possible. I am also concerned about the possibility of X being exposed to family violence in the mother’s care if the mother is either mentally unwell or is in a relationship with someone like the father or Mr L.

5. I must consider the nature of the relationship of the child with each of her parents and any other person.

6. X is closely bonded with her grandmother. She sees her as a substitute mother although she knows she is her grandmother. That is evident from comments she made to the family report writer and from comments she has made at the contact centre.

7. X relates well to her mother; the contact centre notes confirm that.  She has no fear of her mother. She can be a bit bossy and a bit non-compliant with her mother but she is always happy to spend time with her and many warm interactions have been observed at the contact centre.

8. I must consider child support issues and the extent to which people have taken the opportunity to spend time with the child but neither of those will assist me in this particular case.

9. I must consider the likely effect of any change in the child’s circumstances.

10. The grandmother and the mother both proposed a significant change for X.

11. The grandmother proposed a very severe reduction in the amount of time the child spent with the mother. The mother proposed an immediate commencement of unsupervised time on weekends and during school holidays.

12. I will consider the issue of the likely effect of a change in the child’s circumstances in the conclusion to my judgment.

13. The next thing I have to consider is the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

14. There is only one parent in this matter, the mother, but this is a case in which there is, not because of distance but for other reasons, considerable practical difficulty and expense in the child spending time with and communicating with a parent if it is considered that time must be supervised.

15. There is no contact centre in (omitted). There is also no independent professional supervision service such as Rekonnect or Big Brown House which operate in (omitted) and which for a price provide supervision after final court orders are made and provide supervision in places other than at a centre. Those are services which might allow children to be taken to the shops or to the park.

16. There are also no private individual in (omitted) who routinely offers to do supervision.

17. The only available options for supervision are either the maternal grandmother – and nobody suggested she would a suitable option – or a private individual, and the only person named in the proceedings was Ms R and Ms R, although willing to help, has her own life and there is a limit to what can be expected of her.

18. Nobody has suggested that the parties should continue to travel to (omitted) and in any event the contact centre there is probably unlikely to continue to offer supervision once final orders are made.

19. If it is decided that supervision needs to continue there will be considerable practical difficulty. Not necessarily expense, because there is no expensive service to pay for, but considerable practical difficulty in arranging for the child to spend regular time with the mother.

20. I must consider the capacity of each of the parents and any other person to provide for the needs of the child, including her emotional and educational needs.

21. I am abundantly satisfied that the maternal grandmother is capable of providing for those needs.

22. I have a number of concerns about the mother’s parenting capacity.

23. One arises out of her propensity to enter into very unsatisfactory relationships. Dr H considered it highly likely that the mother would form another such relationship in the future and she reiterated that in cross-examination and I accept her evidence.

24. The mother said that she wouldn’t. She said that she was doing a program called (omitted) which was meant to prevent that from happening, or rather to give the mother some tools and insight to prevent that happening, but I tend to be of Dr H’s view that it is highly likely that the mother will form another relationship and history suggests that it will be with somebody like Mr L or Mr M. 

25. The other issue to do with the mother’s parenting capacity is that there is considerable reason to be concerned about her capacity to care for the child uneventfully in good times and bad. Dr H referred to that extensively in her report.  She said as follows:

    I would deem Ms Welk to be capable of at least marginally normal parental reflective function under conditions of low stress.[11]

    [11] Dr H’s report paragraph 49

26. Dr H later said:

    Even if Ms Welk is capable of normal PRF [parental reflective function] under calm conditions, her ability to maintain a child focus is prone to collapse under pressure and her ability to make child focused decisions generally is impaired by her psychological maladjustment, as insights from case history amply demonstrate as described below.[12]

    [12] Dr H’s report paragraph

27. There is considerable reason to be concerned about the mother’s capacity to parent this child both in easy times and hard times and hard times can occur on and off even over the course of a weekend, with a child being grizzly or oppositional and on other occasions happy and compliant.

28. If thrown into that mix is the mother being in a state of impaired mental health, or an unsatisfactory partner being around, it is of considerable concern that the mother may simply not be able to parent X appropriately.

29. Another concern I have is that the mother is not empathic about the child. She filed an application for residence which was ongoing for over two years. It has been unsettling for the maternal grandmother and for the child and the mother withdrew it only at the last minute. Despite the fact that she was hospitalised on and off between April and July 2017 she only withdrew it after Dr H’s report was released, which the mother must have realised meant that any case she might want to run for residence could not succeed. She did not withdraw it because she developed insight or because she was concerned about her prospects of success as a result of her hospitalisation and that is clear enough from her trial affidavit.

30. The mother is also not empathic in that she shows no sign of recognising the benefit to X of the stable care the grandmother can provide. Dr H said as follows:

    ….. Ms Welk did not seem to be aware of how much doubt she was inspiring in me about her ability to insulate the child from adult conflict – not only with her accounts of hostile handovers between herself and the father in years gone by, but by her accounts of the volatile relationship with her mother combined with her cavilling about Ms Middelstadt’s parenting methods. Ms Welk seemed to have difficulty accepting that if the maternal grandmother were to continue as the primary residential caregiver, then (short of reportable child maltreatment) she must keep her dissenting opinions to herself. If Ms Welk does not expect good co-parenting teamwork to develop (as she said she did not) then she should not oppose, criticise or undermine the grandmother’s parenting decisions or care regime, and should assiduously avoid any outbreak of open hostility which would discomfit X. Ms Welk said she was endeavouring to be pleasant to her mother, but considered this may be difficult to sustain given her mother’s unacceptable attitudes.[13]

    [13] Paragraph 11 of the Expert Report.

31. This paragraph struck a strong chord with the family report writer who referred to it twice in cross-examination.

32. The mother loves the child and she wants a relationship with her but she lacks empathy for the child.

33. An example of blunted empathy was when she rushed off and contacted the school after the child said something to her at the contact centre about one of her teachers. The child was interviewed at school, potentially embarrassing her. The mother does not seem to have stopped for a minute and considered whether it might have been better to have spoken to the maternal grandmother about it first and allowed her to handle it.

34. And then of course there is the issue of her resort to heavy drinking on occasions and her self-harming behaviour which during her relationship with Mr L sometimes erupted suddenly and was impulsive. This causes me considerable concern about her capacity to care for the child for any extended period of time and by extended I mean a few days or overnight.

35. I must consider the child’s maturity, sex and background.

36. X has had four relatively stable years although punctuated by a little bit of conflict caused by the current and previous legal proceedings. Before that she had four very difficult years which involved Children’s Court proceedings, a brief stint in foster care, a period of time of being with the mother and the maternal grandmother on the (omitted), then being taken by her father to Sydney, her father subsequently being charged with child sex offences, then going back to the maternal grandmother. She had a very difficult four years. She is now doing very well and it is very important that she not be destabilised.

37. It is apparent that in the company of the maternal grandmother she can handle some exposure to the mother’s difficult behaviour – for instance, the June 2017 incident – but I have considerable concern about whether it would be appropriate to take her out of the grandmother’s care and put her alone with the mother given all the difficulties that have been identified about the mother.

38. The maternal grandmother reflected on what has happened for the child and about the importance of her having stability in the future in her affidavit where she said:

    Whilst I would dearly love for Ms Welk to be well enough and capable of spending more time with X, I have come to accept that Ms Welk’s mental health is far too complex and her behaviour when she becomes mentally unwell is extremely unpredictable. X has come so far in overcoming the trauma of the instability in her formative years, and it would be devastating if anything adverse were to happen to her whilst she was in the care of Ms Welk. I am aware that Ms Welk has made threats of, and carried our acts of self-harm in the past, and it is my greatest fear that she could cause irreparable harm to X if she ever committed any acts of self-harm in her presence.

    X has already been exposed to many traumatic situations and adult concepts by Ms Welk and her father during her formative years. X is performing well academically at (omitted) and is a creative and energetic child. My primary concern is, and always has been to ensure that X is provided with a stable and happy home environment so that she is able to reach her full potential and avoid many of the poor choices and consequences that have plagued her Mother’s adult life.[14]

    [14] Paragraphs 68 and 69 of the maternal grandmother’s affidavit

39. I endorse, from the evidence I have heard, those comments about the risks to the child in the future and the necessity, the sheer importance, of her not being exposed to too many traumatic situations from now on.

40. I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.

41. That is not going to assist me.

42. In relation to family violence, there was some in the mother’s relationship with the father and Mr L.

43. The relevance of that is that it could happen again in the future if the mother chooses another partner like them which one cannot rule out.

44. I must consider whether there is any family violence order relevant to the child.

45. There is a family violence order protecting the mother from the father which is current until 2018 or 2019. That bolsters the view that it would be entirely inappropriate to make an order which would remotely permit the father to have time with this child.

46. I must consider whether it is preferable to make the order least likely to lead to further proceedings.

47. It is impossible to know what that order might be. This is an exceptionally difficult case when it comes to making a decision about appropriate orders.

48. I finally have to consider any other fact or circumstance which the court thinks is relevant.

49. Sometimes in cases before me people are in a certain place in their life and they have certain problems but there is a prospect that if they have some counselling or do a course then things might change.

50. Dr H suggested that the mother would benefit from some counselling to assist her to accept the reality of the situation that she was not going to be the child’s primary carer among other things. It is open to question though whether (a) the mother is likely to do a course or have such counselling or (b) it is likely to have any effect if she does, and I think Dr H conceded during cross-examination that you could not be certain that it was going to have any impact or going to change the way the mother thought about things.

51. The mother has a complex set of mental health issues, some of which flare up and cause her to be hospitalised and some of which are responsive to medication, but one of which, an underlying personality disorder, is always there and is not responsive to medication.

52. I could not be confident that the mother, who is now 41, is necessarily going to benefit from any counselling that I might order that she undertake or any course that I might order that she do.

Parental Responsibility

1. The mother is the only available parent but she is not suitable to exercise sole parental responsibility for the child and the child is living with the maternal grandmother. The decision I have to make is whether I should order that the maternal grandmother continues to have sole parental responsibility as she has at the moment or whether I should make an order as the mother now seeks that the maternal grandmother have sole parental responsibility but that there be a condition or a rider to it that before she makes a major long term decision she will contact the mother and discuss the issue with her and take her views into account in making the decision.

2. It might be that when the mother is well and doesn’t have any other problems in her life that she could make a valuable comment on something the maternal grandmother proposed to do but I cannot be sure that at any particular time she is going to be in a good place in her life. I cannot be sure how she is going to react to anything the maternal grandmother says or how she is going to feel about the maternal grandmother when a problem arises that needs to be resolved.

3. Like the family report writer I am very mindful of what is set out in paragraph 11 of Dr H’s report. There is a long standing issue of the mother blaming the maternal grandmother for her problems because of what she alleges happened in her childhood. Dr H said as follows:

   Despite Ms Welk’s stated good intentions about maintaining civil communication with her mother, calm goodwill seems most unlikely to last given the volatile, often hostile, mother-daughter relationship she described. Before very long Ms Welk would probably challenge her mother’s parental authority in ways which exposed X to inner and outer turmoil. Poor developmental outcomes have been found for Australian children who must move frequently between warring adult caregivers.[15]

   [15] Dr H’s report paragraph 66

4. I cannot have the smallest hope that the mother and grandmother, at any particular time when a decision is required, are going to be in a place which will allow them to cooperate about making the decision, listen to each other and then make a decision for X’s benefit.

5. That means that in no way could there be equal shared parental responsibility but I am also not minded to make an order that the grandmother to consult the mother. That is more likely to lead to conflict and be non-productive than it is to be a productive order for X and it is X I have to think about in terms of what orders that I make.

Conclusion

1. In many respects this is an exceptionally difficult matter.

2. There is absolutely no doubt that X should continue to live with her grandmother and there is also no doubt that insofar as it can happen in a way that does not unsettle the child and in a way which exposes her to the good things that she can do with her mother, she should be seeing her mother. Those are the two building blocks I have to work with.

3. However there is a real problem with deciding what order to make about the child spending time with the mother.

4. This is not a case where the mother has had a couple of isolated admissions to a mental health unit and in-between the admissions has led a calm, uneventful life.

5. The inpatient admissions are only part of the problem. In-between there have been many other instances of the mother being in an unsatisfactory and/or abusive relationship, drinking heavily, self-harming, overdosing and having the police involved. There has not been, as might appear to be the case if you just look at the admissions, a three year period of calm since the last court proceedings.

6. Even just in relation to the admissions there is a decline in the mother’s mental health leading up to those admissions. The mother acknowledges that, so from that perspective alone there are periods outside the admissions that one needs to be very concerned about.

7. Another issue is that there is no prospect of a complete cure for whatever is going on in relation to the mother’s complex problems. She has had mental health issues since she was 13. She is now 41. She has a personality disorder as well as other issues that flare up and are acute.

8. Sometimes people have a condition which can be cured or controlled by drugs. A person might for instance have Bipolar Disorder and as long as they are compliant with their medication all may be well. They may give up drug use. However in this particular case there is no prospect of a cure and every prospect that the roller coaster the mother has been on for most of her life is going to continue.

9. There is a high likelihood of the mother forming an unsatisfactory relationship with someone like Mr L in the future. That relationship continued from June 2014 to August 2017. It involved heavy drinking by both parties, self-harm by the mother and police attendances. I accept Dr H’s evidence that it is highly likely that the mother will enter into another such relationship in the future. She said as follows:

   Nothing emerged in interview to suggest that the mother has had an epiphany as a result of which she will never again engage with a coercively controlling, violent or emotionally disturbed man. In fact, I consider it most likely that she will do so given her personal attractiveness, her unresolved state of mind with regard to attachment and her relationship history.[16]

   [16] Dr H’s report paragraph

1. I accept that evidence and place weight on it.

2. There are all sorts of problems in relation to the mother which mean that it is exceptionally difficult for me to decide how to meet the objective of ensuring that X continues to have a relationship with her mother while at the same time ensuring that X is not exposed to turmoil or any unfortunate event in the mother’s life or any acting out by a partner of the mother’s.

3. The ideal outcome in this matter, and it is the ideal outcome in many mental health matters, would be that the person who is well (often the other parent but here the maternal grandmother) decides what is appropriate from time to time, and that is what happened in this case in the immediate aftermath of the 2014 orders.

4. During that immediate aftermath the maternal grandmother agreed to some unsupervised time. She was watchful but she was willing to agree to certain amounts of time depending on how the mother appeared on various occasions.

5. That would be the ideal outcome and occasionally I am able to make that kind of order if the person who has the mental illness is willing to consent to it.

6. However I cannot make that kind of order here because the mother and maternal grandmother have a bad relationship of long standing. It has its good times but it has had many problems. The mother is 41 years old and is resentful of any suggestion that her mother should exercise control over how much time she spends with X. It is inevitable that there will be ongoing conflict if I make an order like that. In my view it would be the best outcome for X if the mother would accept it but she will not and I cannot make that order.

7. The mother sought unsupervised time on weekends and during school holidays and it is probably apparent from my reasons to this point that I could not possibly consider ordering that sort of time, and to be frank at the moment, I could not even possibly consider ordering unsupervised time of any kind, even with an order as recommended by Dr H and I think referred to in submissions that such an order not commence for about a month to ensure that the mother does not decompensate and have an adverse reaction to my decision.

8. I could not consider ordering unsupervised time at the moment. The mother is on a community treatment plan but it is due to cease in January 2018. The injections will then cease. I cannot be sure about her compliance with medication after that. I cannot be sure what the future is going to hold for her in terms of relationships. As I mentioned there is a personality disorder as well as other mental health issues.

9. X is vulnerable and I cannot afford to do anything which might expose her to risk of harm or expose her to even one incident with the mother, one incident where the mother drank too much or impulsively took an overdose of tablets or had to call the police. I cannot take that risk at the moment and in the end neither the family report writer nor Dr H supported unsupervised time happening immediately.

10. The family report writer’s recommendation – and she did not change it after reading Dr H’s report and in fact I think that bolstered her view - was that time should remain supervised for the present. She recommended that supervised time continue, hopefully outside the contact centre, for 12 months before anything else was considered.

11. If I have to make an order for supervised time there are serious problems with how it can be done and how frequently it can occur because of lack of resources available in (omitted) which I referred to earlier.

12. The grandmother proposed that her friend Ms R do the supervision but I am being asked to make long term orders for X and Ms R is not always going to be available. She may get ill. She may have other family commitments of her own.

13. I am going to have to do the best I can and nominate Ms R to do it because nobody put forward anyone else but I am also going to have to make an order that the grandmother be able to nominate an alternative supervisor.

14. The Independent Children's lawyer proposed that if supervision was to occur it should be for two hours once a fortnight. That is a huge imposition on an individual such as Ms R. My concern is that she may not be able to accommodate that.

15. To an extent that is a drafting issue. I can draft something to cover the eventuality that she was not available but I am conflicted about whether I should order it to be once every fortnight or at longer intervals.

16. I am not going to do what the grandmother proposed though and order that time occur on only four occasions each year. That is completely insufficient. If the time is to be supervised there is no reason why it could not continue to be much more frequent than that as it has been in (omitted). If it happens in (omitted) travel will not be required.

17. However taking into account the sheer difficulty with making sure that someone is available to do it, what I am going to do is order that it occur once a month. I am going to order that it occur for two hours on each occasion because frankly I am struggling to know what to do. It is not ideal. If it could be for longer it could include things like Ms R going with the mother and X to the shops. It could include Ms R going with the mother and X to the cinema.

18. I do not know whether the mother is going to accept that and be willing to do it and I am very concerned about a long term order for supervised time. I do not know what is going to happen between the mother and Ms R. The mother may take a dislike to Ms R for some reason. The thing could break down and that is a real concern but there are no other options at the moment. The mother did not put one forward for supervised time in (omitted). Inquiries by the Independent Children’s Lawyer suggested there were no other options. I am stuck so I am going to make an order that allows some flexibility but it will have to be on the basis that the maternal grandmother will determine whether there is any additional time and whether there is an alternative supervisor.

19. The maternal grandmother is the only one I can trust to make that decision and I am not going to make an order that it be as agreed between the mother and the maternal grandmother.

20. The Independent Children’s Lawyer went on to propose that after 12 months the time should move to unsupervised, for limited duration but unsupervised.

21. That was a recommendation that was contained in the family report so I can understand why the Independent Children’s Lawyer went down that path. However I do not accept that this is a case in which it is appropriate to simply move from supervised to unsupervised time and I can see no basis for making an order for a stepped increase in time for no other reason than that a fixed period of time has passed.

22. Sometimes that is appropriate. The case may involve a young child who will grow older or a child who does not know a parent but will get to know them, or it may be a case where a parent may cease using drugs and if it can be demonstrated that they have then the time should increase or become unsupervised.

23. None of those things apply in this case. The mother has had lifelong mental health issues and has a personality disorder. There is nothing to suggest those things are going to change and if that is the case there is no basis for saying that simply because 12 months passes the risk has changed and therefore the time should move on to unsupervised.

24. I also could not comfortably make an order for overnight time either now or in 12 or 18 months time. According to the police and the medical records, the mother has had a number of acute mental health episodes at night. There is the risk of an unsatisfactory partner which she may not immediately tell the grandmother about, a risk of alcohol consumption and a risk of a sudden flaring up of symptoms.

25. There is nothing to suggest the mother is adept at recognising symptoms of decline in her mental health. She said that she thought she was in the witness box but Dr A’s evidence was that people usually weren’t. Dr H gave evidence about the devastating impact it would have on X to see her mother have a mental health episode and the maternal grandmother was not challenged on her evidence that the mother sometimes became aggressive during a mental health episode.

26. I simply would not be prepared to make an order that this child spend unsupervised time with the mother or overnight time.  I cannot do it.

27. I realise that there are considerable difficulties with an order that time has to remain supervised. I am consigning the mother for the long-term to having quite a minimal role in the child’s life but I have to put this child front and centre. She had a very difficult life for the first four years. She is stable at the moment. She is being well cared for by her grandmother. Her grandmother is standing in the shoes of a mother to her, sad though it is for the mother to have to hear that.

28. The mother has had fluctuating mental health since she was 13. She has an underlying personality disorder. I can see no sign that anything is likely to change in the future and I cannot make an order which is likely to destabilise this child or put her at risk. I cannot do it simply in order to give the mother a more important role in the child’s life. That would be making a decision that focused on the mother not on the child. X is eight. She is vulnerable. The maternal grandmother is the one stable rational person in her life.

29. The maternal grandmother is not dismissive of the mother and I do not accept that she has tried to sideline or marginalise her.

30. The only order I can make is for supervised time and I am going to make an order for shorter periods of supervised time once per month and I will come to the precise form of the order in a moment.

31. These cases are very sad and very difficult and there is a considerable risk that this matter may return to court. An order for long-term supervised time can break down. It can break down because the child gets sick of going on supervised visits. It could break down in this case because something happens to Ms R and no other supervisor is acceptable to the mother but in the difficult circumstances of this case that is all I am prepared to do.

32. I have to consider the issue of telephone communication because it was raised by the mother and the Independent Children’s Lawyer. Such an order was opposed by the maternal grandmother and again I cannot see how I can safely make that order.

33. The maternal grandmother could be permitted to put the telephone on speaker in case anything untoward was said but that would not prevent the child from hearing it and being upset and destabilised by it and there is no guarantee that something like that would not happen.

34. Another contentious issue is whether there should be an order that the mother be permitted to go to events at the child’s school.

35. There was a time in the past when the mother and maternal grandmother were on better terms and this did happen. However the maternal grandmother opposes that order being made at present and I am not prepared to make it.

36. Often for children like X school is a sanctuary, a safe place, a place where they can get away from their problems. It would be awful for X if there was an incident at the school because the mother was not well and said something which embarrassed the child, and X was embarrassed by being interviewed over the complaint about the teacher.

37. If I make an order that the mother is permitted to attend school events she may not stay away when she is unwell and her judgment is impaired, just as she went to the grandmother’s home when she was unwell. The better option for X is that I make an order that she just can’t go there unless the maternal grandmother agrees in writing that should occur. I reiterate that I accept that this is going to mean that the mother will never have a central role in this child’s life and the child commented to her at the contact centre on one occasion, “You’re more like my sister than my mother”.

38. However, somebody has to give this child a stable upbringing. The maternal grandmother is the only person able to do that and the child has to be protected from exposure to any unwellness of the mother and any impact of the mother’s personality disorder and that can best happen if she has limited periods of time with her which are fun and happy for the child.  I am sorry for the mother that I have to make that decision but I simply have to make a robust decision.

39. I am deliberately not making an order that matters such as choice of supervisor to be by agreement between the mother and the maternal grandmother because the mother misunderstood that order on the last occasion and thought that it gave her perhaps some standing to have a say about whether time occurred. Such an order is only going to cause conflict. If the maternal grandmother determines that something is to happen it will happen and if not it will not happen.

40. I am not going to make the order about the maternal grandmother having contact with the mother’s treating health professionals. I am not minded to do that because I am not going to make an order for unsupervised time. The time will be fairly limited and if mother turns up for a visit unwell there is nothing I can do but require the people on the ground at the time to deal with that as it arises, but the time will be fairly limited and that should limit the occasions when that happens.

41. I intend to require the grandmother to inform the mother if the child has to attend hospital as a result of a medical emergency or accident or is diagnosed with a serious illness but I intend to order that the mother not be permitted to attend at the hospital unless the grandmother agrees. The reason I am doing that is simply to avoid conflict. I sincerely hope common sense will apply in relation to something like that and I like to believe it will so that if the child is extremely ill the grandmother will not stand in the way of the mother attending but the reason I am making the order is to try to avoid conflict.

42. I am not going to make order 17 as proposed by the Independent Children’s Lawyer. There has not historically been an issue with the mother harassing or stalking the grandmother at her home. The incidents that occurred in June 2017 happened when the mother was acutely mentally unwell and no order would have been effective in those circumstances anyway.

43. If there turns out to be a problem with harassment or stalking the grandmother will have to see about getting a restraining order but given the absence of evidence that this has been a problem in the past apart from when the mother was mentally unwell earlier this year I am not going to make the order save for making it for six months just in case the mother has an unfortunate reaction to the orders.

44. Counsel for the Independent Children’s Lawyer has made an application for costs against the mother but I am not minded to add to her distress by making an order for costs and in any event if she has been in receipt of Legal Aid at any time, even if she is not now, I cannot make an order that she pay costs. 

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     7 December 2017

[2] Welk & Porter & Anor [2014] FCCA 3216