Woolley and Woolley
[2016] FCCA 2003
•28 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOOLLEY & WOOLLEY | [2016] FCCA 2003 |
| Catchwords: FAMILY LAW – Parenting – three children aged 16, 13 and 9 – parents separated since 2011 – children initially living on a week about basis with each of the parents – significant mental health allegations – risk of harm to children and need to protect – best interests of children – parental responsibility – children to live with father – children to spend limited time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Mental Health Act 2007 (NSW), ss.34, 35 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422; (2006) FLC 93-286 MRR & GR [2010] HCA 4 Champness & Hanson (2009) FLC 93-407 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR WOOLLEY |
| Respondent: | MS WOOLLEY |
| File Number: | PAC 3510 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 25 and 26 July 2016 |
| Date of Last Submission: | 26 July 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 28 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Sharon Payne Family Lawyers |
| Appearing for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Ladopolous |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
That the children X, born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2007 (“the children”) shall live with the father.
That the father have sole parental responsibility for the children but shall do all acts and things necessary to keep the mother informed in relation to major long term decisions regarding the children, including but not limited to issues regarding the children’s education, health and changes to living arrangements which may occur from time to time.
That the children spend time with the mother as follows:
(a)For a two (2) hour period each week at a time and place as agreed to between the mother and the father in writing; and
(b)In addition to the above time, at such other time as the mother and father may agree to in writing.
That notwithstanding Order 3 above, until such time as each child has attained the age of fourteen (14) years, that child shall not be required to spend time with the mother unless at least one of the other children is also spending time with the mother on that occasion.
That in respect of organising the place and time the mother shall spend with the children, the following shall apply:
(a)The arrangements for the mother to spend time with the children shall be made by the parties communicating by either text message or by emails;
(b)The mother shall contact the father by no later than 7pm on the Tuesday of each week requesting time with the children on the following weekend;
(c)The father shall confirm by 7pm on the Wednesday following the mother’s communication pursuant to Order 4.2 and shall reply to the mother in writing as to the following:
(i)Whether time is to occur;
(ii)The venue at which the mother will spend time with the children;
(iii)The commencement and conclusion times.
That the mother be permitted to speak to the children on the telephone twice per week at such times as agreed between the parties with the father to initiate the phone call and in the event that the mother is unable to take the call she is permitted to return the call within 30 minute period of the Father’s call.
That for the purposes of changeover, changeover is to occur in a public place.
That the mother will not attend the father’s home without written permission from the father.
That the mother is hereby restrained from transporting the children by motor vehicle without the written consent of the Father.
That both the mother and the father be permitted to attend:
(a)Any school event relating to any of the children; and
(b)Any of the children’s extracurricular activities
to which parents are ordinarily invited.
That forthwith Sharon Payne Family Lawyers release the children’s Passports currently held by them.
That the father shall retain in his possession for safekeeping all and any of the children’s Passports.
That the father is permitted to travel outside of the Commonwealth of Australia with any or all of the children and the mother’s written consent to such travel is not required.
That the father is permitted to solely apply to the Australian Passport Office for international travel documents, including Passports and renewal of Passports, for any or all of the children and the mother’s consent to the issue of such documents is not required.
That in the event that the father travels with the children outside of the Commonwealth of Australia, the father shall furnish to the mother not less than fourteen (14) days prior to the proposed departure an accurate itinerary to include the following:
(a)A copy of the father’s and children’s airline tickets (if available);
(b)The departure date and return date;
(c)The country or countries the father and children will be travelling to;
(d)The approximate dates on which the father and the children will arrive and depart each country; and
(e)A telephone number and address at which the father and the children can be contacted in each country.
That the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each party shall keep the other properly informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medications and treatment is performed by them.
That the father shall notify the mother of any medical practitioner that the children attend with from time to time, including but not limited to General Practitioners, specialists, mental health practitioners, allied health professionals, including physiotherapists, speech therapists, occupational therapists and any other medical professionals.
That these Order authorise any school which the children are attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.
That the father shall keep the mother informed about any sporting or extra-curricular activities that the children are respectively involved in.
Each party is to notify the other of their residential address and mobile telephone number, within seven days of the date of these Orders, and keep the other party advised of any proposed changes to the above details within fourteen (14) days of any proposed changes.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Woolley & Woolley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3510 of 2014
| MR WOOLLEY |
Applicant
And
| MS WOOLLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in respect of three children:
a)X, born on (omitted) 2000;
b)Y, born on (omitted) 2002; and
c)Z, born on (omitted) 2007.
The children have been living with their father, who is the Applicant in these proceedings since July 2014 and prior to that they had been living with the parents on a week about basis for approximately two years.
The children have, most recently, been spending limited time with the Respondent mother.
The matter has a lengthy and complex history.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and secondary considerations which the Court is to take into account in determining what is in the best interests of the child. In applying the primary considerations[1], the Court is to give greater weight to the consideration set out in paragraph (b).
[1] Namely, the considerations set out in s60CC(2)
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[2]. The Court may include in the order any safeguards[3] that it considers necessary for the safety of those affected by the order.
[2] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[3] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA(1) which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents[4]. Section 65DAA(1) is expressed in imperative terms.[5]
[4] s65DAA(2)
[5] MRR v GRR at
The Full Court in Goode v Goode[6] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[7] affirmed the legislative pathway.
[6] (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] [2010] HCA 4
In Starr & Duggan[8] Boland, Thackray & Watts JJ stated :
…. the legislation does not mandate consideration of the relevant sections in any particular order.
The Evidence in the Proceedings
[8] [2009] FamCAFC 115 at [38]
The Father
The father, who was the Applicant in the proceedings, sought orders that he have sole parental responsibility and that the children live with him.
In respect of the time with the mother, at the commencement of the hearing the father’s position was that such time should be as agreed between the parties in writing but after hearing the evidence of the family consultant the order which was sought was that the children spend time with the mother for two hours each week (in line with the Independent Children’s Lawyer’s proposal).
The father relied upon the following documents:
a)Initiating Application filed 29 July 2014;
b)Affidavit of Mr Woolley filed 19 July 2016;
c)Affidavit of Ms P filed 19 July 2016;
d)Notice of Child Abuse Family Violence or Risk of Family Violence filed on 29 July 2014;
e)Family Report of Dr L dated 19 May 2016.
The Mother
The mother’s case was difficult to ascertain from the outset.
At the commencement of the hearing the mother indicated that she understood that the children wanted to live with their father and that she “would like to see the children as per normal family would every second weekend … Friday through to Sunday.[9]”
[9] 10.13am on 25 July 2016
The mother then also, at the commencement of the hearing, handed up what may loosely be called a Case Outline Document, containing an outline, a chronology, a minute of final orders sought, a list of documents and a summary of argument. Also attached to that Case Outline Document was a 53 paragraph Proof of Evidence titled “Affidavit of Ms Woolley” which was not sworn, signed nor witnessed. The mother ultimately adopted the contents of that Proof of Evidence and the entire bundle of documents became an Exhibit in the proceedings.[10]
[10] Exhibit 2
The Minute of Order which was contained in the mother’s Case Outline Document sought an order for equal time and equal shared parental responsibility.
This was in direct contrast to what was contained at the commencement of that same Case Outline Document which read “… the mother will be applying for full custody of her children.”
Ultimately, in submissions, the mother sought an order for the children to live with her and spend supervised time, or in the alternative every second weekend, with the father.[11]
[11] See also paragraph 53 of these Reasons. The Court notes that the mother sought a recovery of the children by way of her Amended Application in a Case, which the Court considered as part of the mother’s application for final orders and which was ultimately subsumed in the order sought for the children to live with the mother
The mother relied upon the following documents:
a)Notice Risk field 13 November 2015;
b)Affidavit of Ms Woolley filed 15 February 2016;
c)Affidavit of Ms Woolley filed 20 January 2016;
d)Affidavit of Ms Woolley filed 16 September 2015;
e)Affidavit of Ms Woolley filed 10 July 2015 (sworn 10 July 2015);
f)Affidavit of Ms Woolley filed 10 July 2015 (sworn 8 July 2015);
g)Affidavit of Ms Woolley filed 10 July 2015 (bearing two swearing dates - 29 November 2014 and 1 December 2015); and
h)Exhibit 2.
The Court found that during her cross-examination the mother was at times unresponsive, that she at times gave rambling answers and that she was not constantly focused on the questions which were being asked.
The Independent Children’s Lawyer
The Independent Children’s Lawyers sought orders[12]largely in line with the father’s application but in summary, that the children spend time with the mother for two hours each week and for the father to have sole parental responsibility for the children.
[12] Which were set out in a short minute handed up
Documents Tendered
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit 1 – Family Report of Dr L dated 19 May 2016;
b)Exhibit 2 – Mother’s Case Outline Document containing:
i)Outline of case under heading “Amended Application”;
ii)Chronology;
iii)Minute of final orders sought;
iv)List of documents;
v)Summary of argument; and
vi)A 53 paragraph Proof of Evidence titled “Affidavit of Ms Woolley”
c)Exhibit 3 – documents produced under Subpoena by Dr R (sleeve 20)
d)Exhibit 4 – documents produced under Subpoena by (omitted) Medical Practice (sleeve 19) being:
i)Tab ICL A – Surgery consultation record by Dr K on 20 April 2016; and
ii)Tab ICL B – Mental Health Transfer/Discharge Summary dated 3 October 2012
e)Exhibit 5 – documents produced under Subpoena by (omitted) Hospital (sleeve 3) being:
i)Tab F 3.1 – Mental Health Assessment dated 17 September 2012 (one page);
ii)Tab F 3.2 – Mental Health Assessment dated 25 July 2014;
iii)Tab F 3.3 – Mental Health Assessment dated 25 July 2014;
iv)Tab F 3.4 – Mental Health Assessment dated 25 July 2014;
v)Tab F 3.5 – Mental Health Risk Assessment dated 25 July 2014;
vi)Tab F 3.6 – Progress/Clinical Notes dated 28 July 2014;
vii)Tab F 3.7 – Progress/Clinical Notes dated 28 July 2014;
viii)Tab F 3.9 – Progress/Clinical Notes dated 29 July 2014;
ix)Tab F 3.10 – Progress/Clinical Notes dated 29 July 2014 – 31 July 2014
x)Tab F 3.11 – Progress/Clinical Notes dated 31 July 2014;
xi)Tab F 3.13 – Mental Health Inquiry by Mental Health Review Tribunal dated 7 August 2014 (two page document)
xii)Tab F 3.14 – Report to the Mental Health Inquiry Hearing to be held August 7, 2014
f)Exhibit 6 – documents produced under Subpoena by (omitted) Hospital (sleeve 6) being:
i)Tab 12 – Treatment Plan dated 20 August 2014.
g)Exhibit 7 – documents produced under Subpoena by New South Wales Police (sleeve 18) being:
i)Tab 18.2 – COPS entry – event reference (omitted);
ii)Tab 18.3 – COPS entry – event reference (omitted);
iii)Tab 18.6 – COPS entry – event reference (omitted); and
iv)Tab 18.7 – COPS entry – event reference (omitted).
h)Exhibit 8 – documents produced under Subpoena by (omitted) Hospital (sleeve 10) being:
i)Tab F 10.1 – Assessment documents dated 20 November 2014;
ii)Tab F 10.2 – Progress Notes dated 28 July 2015;
iii)Tab F 10.3 – Progress Notes dated 24 June 2015; and
iv)Tab F 10.4 – Progress Notes dated 30 July 2015
i)Exhibit 9 – documents produced under Subpoena by (omitted) Hospital (sleeve 11) being:
i)Tab F 11.8 – Community Treatment Order dated 27 August 2014;
ii)Tab F 11.9 – Progress Notes dated 28 August 2015;
iii)Tab F 11.10 – Assessment Documents dated 27 July 2015;
iv)Tab F 11.11 – Progress Notes dated 28 August 2015;
v)Tab F 11.12 – Assessment documents dated 26 February 2015;
vi)Tab F 11.13 – Assessment documents dated 31 July 2015;
vii)Tab F 11.14 – Clinical Patient Information dated 2 June 2015;
viii)Tab F 11.15 – Discharge documents;
ix)Tab F 11.16 – Progress Notes dated 28 July 2015;
x)Tab F 11.17 – Progress Notes dated 2 April 2015; and
xi)Tab F 11.20 – Progress Notes dated 14 October 2014.
j)Exhibit 10 – Documents produced under Subpoena to Ambulance Service NSW (sleeve 4) being:
i)Tab F 4.1 – Ambulance Electronic Medical Record dated 17 September 2012
k)Exhibit 11 – Documents produced under Subpoena to (omitted) Mental Health Services (sleeve 8) being:
i)Green Tab – Assessment documents dated 10 November 2014
ii)Green Tab – Review/Management document dated 20 November 2014
l)Exhibit 12 – documents produced under Subpoena to (omitted) Community Mental Health (sleeve 16) being:
i)Letter dated 2 June 2015 from Dr J to Dr Y.
Short Chronology
The father was born on (omitted) 1957.
The mother was born on (omitted) 1973.
The parties commenced living together in late 1993. They were married on (omitted) 1999 and they separated in September 2011.
The parties divorced on 9 August 2015.
The father re-partnered in April 2012 and re-married on (omitted) 2016.
The mother has not re-partnered.
From the date of separation until December 2011, the parties lived separated under the one roof. In December 2011 the father moved out of the former matrimonial home and rented a three-bedroom house.
From about January 2012 the parties reached an agreement for the children to live week about with each of the parents, from Monday to Monday.
From about September 2012 the mother established a (omitted) business and she also (employment omitted). The mother would take the children with her to work at times and if she was working nights she would leave the children at home while she was at work.
Between January 2012 and July 2014 the children generally spent week about with each of the parents, although the father had increasing difficulties in his communications with the mother and also increased concerns about the mother’s ability to care for the children.
On 25 July 2014 after a car accident, the mother was taken by Ambulance to (omitted) Hospital where she was admitted on an involuntary basis. She remained in hospital until 27 August 2014, when she was released after the making of a Community Mental Health Treatment Order which lasted for a period of six months.
On 29 July 2014 the father filed an Initiating Application seeking both final and interim orders, together with a Notice of Risk of Abuse.
There was no appearance by the mother when the father’s Initiating Application was first returnable.[13] Orders were made on 13 August 2014 for the children to live with the father.
[13] The mother was an involuntary patient at (omitted) Hospital at this time
On 28 November 2014 the father filed an Application in a Case and supporting Affidavit. On 1 December 2014, orders were made by consent for the children to live with the father and after some specified days during the Christmas school holidays, to spend time with the mother every alternate weekend commencing early February 2015. The matter was also listed for Interim Hearing on 19 March 2015 and then further adjourned for hearing to 23 March 2015.
The father’s application seeking interim orders was heard on 23 March 2015 by Judge Donald, who made interim orders. Those orders were lengthy and detailed and provided for the children to live with the father and spend time with the mother each alternate weekend. The mother was ordered to attend upon her Psychiatrist for the purposes of receiving treatment and that she was to authorise her treating practitioner to contact the father in the event that the practitioner formed the view that the mother was suffering from a psychotic episode, or any mental health episode that impairs her ability to care for herself and others.
On 29 May 2015, the matter was transferred to Judge Newbrun’s docket.
On 10 July 2015, orders for the preparation of a Family Report were made.
The mother filed an Application in a Case on 10 July 2015, seeking interim orders as follows:
(1)Every weekend with kids.
(2)No need phsychiatrist (sic) visits.
(3)The rest of the orders to remain the same.
(4)The father is not the contact medically.
On 17 September 2015, the mother filed an “Amendment” Application in a Case, seeking further time with the children.
On 6 October 2015, Judge Newbrun made orders listing the matter for mention on 30 October 2015 in relation to the Mother’s Amended Application in a Case.
On 30 October 2015, the mother’s Amended Application for interim relief was listed for hearing on 29 April 2016.
The mother filed an Application – Contravention on 2 November 2015, alleging a contravention on 30 October 2015, namely that the father did not attend the pick-up site with the children.
The mother then filed a further “Amendment” to the Application in a Case on 13 November 2015, which sought a recovery order, “due to rape allegations which are ongoing”.
On 15 February 2016, the Contravention – Application was stood over to 29 April 2016 to be heard at the same time as the mother’s Application in a Case.
On 29 April 2016, orders by consent were made, discharging some of the orders made on 23 March 2015, and providing for the children to spend time with the mother for two hours each weekend.
On 20 May 2016, Judge Newbrun made a number of orders including for the release of the Family Report, setting the matter down for Final Hearing before me on 25 July 2016 and also that:
13. The mother’s outstanding Applications in a Case and Contravention Applications are stood over to the final hearing. It is the intention of the Court today that the mother’s outstanding Applications in a Case and Contravention Application will be subsumed within the context of the final parenting hearing and dealt with within that context.
At the commencement of this hearing, there were discussions between the mother and the Bench about the outstanding Contravention Application and the further Amended Application in a Case. The mother was given the opportunity to obtain some legal advice about whether she pressed those applications[14], on the basis that the Court would take into consideration the matters which were set out in the Affidavits in support of the Application and that the orders the mother sought in the Application in a Case would be treated as orders the mother sought on a final basis.[15]
[14] Matter was stood down while mother spoke to a Duty Solicitor
[15] See paragraph 22 of these Reasons and footnote thereto
The Court understood that the mother was able to obtain advice from the Duty Solicitor about whether she pressed the two outstanding Applications.
Ultimately on the first day of the hearing, after being granted leave to do so, the mother withdrew the Application – Contravention filed 2 November 2015 and Amended Application in a Case filed 13 November 2015.
Concerns about the Mother’s Behaviour and Mother’s Mental Health
Despite quite specific orders being made for evidence to be placed before the Court about the mother’s mental health and treatment thereof and for the mother to keep the father informed about her mental health treatment, neither of these two matters occurred.
It appears that the mother had been of the erroneous view that the responsibility for placing this evidence, concerning the mother’s mental health and treatment thereof, before the Court did not fall on her but rather on the Independent Children’s Lawyer. Furthermore the mother also assumed, once again erroneously, that because certain Subpoenas were issued, that those documents would automatically have found their way to the trial Judge.
While the mother was a litigant in person, the Court in the conduct of the proceedings followed the established guidelines[16] and informed the mother, inter alia, of the general manner in which the trial was to proceed. In any event, it appears that relevant documents were tendered by the parties, including the mother and questions asked during cross-examination in respect of this important issue concerning the mother’s mental health and any treatment thereof.
[16] Re F: Litigants in Person Guidelines (2001) 27 FamLR 517 at [253]
The father gave evidence both about the mother’s behaviour during the parties’ relationship and also post separation. There was independent and corroborative evidence in respect of the mother’s post separation behaviour by virtue of the various exhibits.
The Court is significantly more concerned about the reported behaviour of the mother post separation and particularly of recent. Set out below are relevant incidents and behaviour which are made as findings of fact and based on which the Court has held that the mother lacks insight into the impact of her own behaviours on the children and also about the risks to the children in the mother’s care.
2012 - 2015
During 2012 the two older children reported to the father that the mother was “always crying”.
On 24 February 2012, the owner of the (omitted) business where the mother had been attending (omitted) classes, attended (omitted) Police Station to make a complaint against the mother. He reported that:
a)the mother had approached him at (omitted) in (omitted) asking if he wanted to fight her;
b)the mother would stay behind and watch him teach classes;
c)the mother asked him if he was ‘available’ and gave him a necklace;
d)the mother had at times waited in her car for him to leave the (omitted) business after his classes;
e)the mother had approached him on occasion in front of his child[17] and made a scene;
f)the mother had stated to him that she wanted to have a psychic affair with him; and
g)on 10 February 2012, the mother contacted his home and spoke to his wife requesting to speak with him.
[17] The (business omitted) owner’s child attended the same school as the subject children
Upon these matters being reported, the mother was contacted by the Police and informed that she was not to make any contact with the (omitted) instructor, his family or to attend any of his workplaces. The mother was told that the instructor had been given advice to apply for a personal violence order if the mother continued her behaviour. The mother then replied “Well I want one against him.”
Annexure “F” to the father’s Affidavit is a typed document headed “An Affair with (omitted)”. It is a nine page letter which was never sent. It contains passages such as:
… At that time I had not come to any conclusions about being a psychotic empath or telepathic. I have experienced many unusual contacts, thoughts, feelings, visions and not trusted them as an external occurrence. I thought perhaps various parts of my inner world were so forcefully supressed that I manifested things. On another way of putting it would be that I didn’t trust my own mind.
… I understand your situation now and realize that events have drawn me to you in a very spooky way. I no longer resist anything. The universe will guide me and I will try to bring my heart rate down to normal so I can speak to you again and one day we will be together.
… I convinced myself that I had to take back my energy… I felt I had to remove myself from her in order to end our little chi battles… I cocooned you in a blanket of chi and touched your heart several times to bring you back to life...
Some of the events referred to in the letter reflect the complaints made by the (omitted) instructor to the Police. The mother said in evidence that the letter was a fictional, private and imaginative document, that it was not meant to be read by anyone, it was not something you could pick to pieces, and she was very upset at the fact that the letter was in evidence. While said to be a fictional document, the fact that the letter loosely resembles and reflects the (omitted) instructor’s complaints, is a matter which the Court considers relevant. It is indicative of the mother’s state of mind at the time it was written[18], and her insight and understanding at present.
[18] The Court infers it was written close to the time of the complaint to the Police by the (omitted) instructor, having regard to the father’s evidence at paragraphs 21-24 of his trial affidavit
In March 2012 the mother came to the father’s house, she was yelling at the father and hitting him. She grabbed the children and put them in a car. The mother then drove away with the children in a highly agitated state saying “you will never see them again”. The children were upset and crying. The mother came back with the children 20 minutes later apologising to the father. She was very upset and crying uncontrollably.
On 17 September 2012, the mother was taken to the Emergency Department at (omitted) Hospital by ambulance. She had arrived at her mother’s home with the three children and was reported by the maternal grandmother to be distant, confused and not aware. The maternal grandmother reported that this was the second such episode.[19]
[19] Exhibit 5, tab “F 3.1”; Exhibit 10
The maternal grandmother had telephoned the father upon the mother’s arrival with the children and said:
Ms Woolley is here, and she is in a really bad state. She is sick. I don’t know what is wrong. You need to come and collect the kids.
The children were returned to the father’s care by the maternal grandmother’s partner. The father says that the children seemed fine in the way they were behaving although they looked dishevelled, particularly Z whose hair was matted, she was dirty and without any shoes. Y told the father afterwards “mum was crying uncontrollably and slapping the wall again.”
In evidence is a Transfer/Discharge Summary for the mother from the (omitted) Treatment Team[20] resulting from the admission on 17 September 2012. The reasons for the referral to the Homebased Treatment Team are noted as follows:
‘brain being on the other side of my head’… staring unresponsively into mirror. Agitated. Hearing voices … Panic … finding it difficult to cope.
[20] Exhibit 4, purple tab “ICL ‘B’”
The mother was discharged from treatment on 3 October 2012. She was started on medications “Paroxetine” and “Chlorpromazine”. The mother reported feeling much better.
Until Z had turned six, the mother had kept her home from school routinely at least one day per week during the week, during the weeks that the children were living with the mother.
In September 2013 X said to the father:
Mum’s changed. Mum is not mum any more… Mum doesn’t hear us when we speak to her. She doesn’t listen to us. We have to speak to her three or four times and keep talking to her until she does.
Both X and Y had said to the father on a number of occasions “Mum sometimes tries to talk and her mouth moves but no words come out.”
On 30 November 2013 after receiving a phone call from the maternal grandmother, the father drove to the mother’s house. When he arrived the mother was shaking, she appeared to be confused and unsteady. She said to the father:
I met this guy a few weeks ago on the side of the road after I ran out of petrol and he stopped to help me. I gave him a job (omitted) and he’s been doing (job omitted) for me since then. But he is a bad man. He is a famous serial killer named (omitted).
During the same conversation the mother said “maybe it is all in my head… I rang the police a few times but there is nothing they can do at this stage.” The father found out from the maternal grandmother that the mother was supposed to be on medication but that she wasn’t sure whether the mother was compliant.
In 2014 the older children told the father that the mother had kept Z at home from school because she missed her and that she had also kept Y from school because she had missed him.
In about May 2014 the children reported that the mother had tried to keep all of the children home from school. The father then made arrangements with the mother for a variation in the time that the children would be living with each of the parents, such as to ensure that the children were attending school and completing their homework.
On 20 July 2014 the father received a phone call from X and Y in which both of the children told the father that the mother was packing their bags and that they were going away for at least a week. The phone call was made during school term and each of the children reported that they were scared and that they did not want to go with the mother. Both of the children said that the mother had told them that they might never come back.
The father promptly attended the mother’s residence and the mother said to the father:
The kids are always sick. They’ve got to stay with me an extra week. I need to take them away to get them well.
The police were called by each of the parents and when they arrived the mother had calmed down and the children indicated that they wanted to stay with their mother.
That night the father received a number of text messages from X telling him that the mother was not feeling safe, that she didn’t trust Mr F,[21] that she didn’t trust the father or his partner and that she was insisting that all three children sleep in the same room with her. The children were scared not only because of the mother’s behaviour but also because of the fears which the mother had told them about.
[21] he was a boarder who was living with the mother who was from time to time given the task of looking after the children while the mother was at work
Over the following few days, after the children returned to the father’s care, the mother visited the father’s residence numerous times to see whether the children were safe and well. The mother would arrive at night or in the morning, at times she was crying and acting irrationally and all in front of the children. All three children were upset by the mother’s behaviour over the course of that week.
On 25 July 2014, the mother became an involuntary patient at (omitted) Hospital. She was discharged after five weeks hospitalisation. The reasons for the referral are noted as:
Odd behaviour, erratic driving, knife in bag. Persecutory delusions worries about 3 sons. Previous similar 5 episodes for 3 days, nil formal diagnosis or admission.
On the day she became an involuntary patient, the mother had been driving erratically with a workmate who jumped out of her moving car. The mother crashed the car and called a tow truck and mechanic. The mechanic called the police and ambulance due to the mother’s “abnormal” behaviour. The mother explained she was driving fast because she was worried about her son, she wanted to see him. She wanted to “just drive past school gate to see him”.
While she was in hospital, the mother was assessed as being at high risk of absconding from the hospital and as suffering from “psychotic disorder”.[22]
[22] Exhibit 5, tabs F3.4, F3.5
On 7 August 2014 the Mental Health Review Tribunal held an inquiry pursuant to sections 34 and 35 of the Mental Health Act2007 (NSW) to determine whether or not the mother was a mentally ill person. The Tribunal determined that the mother was a mentally ill person and that she must be detained in (omitted) Hospital as an involuntary patient until 28 August 2014.[23]
[23] Exhibit 5, tab F3.13
In the “Report to the Mental Health Inquiry Hearing to be held on August 7, 2014”[24] Dr H, the Psychiatric Registrar noted as follows:
[24] Exhibit 5, tab F3.14
Diagnosis: Schizophrenia
…
Ms Woolley was brought to (omitted) Hospital on 25/07/14 by ambulance due to concern for her mental state and welfare. Dr A reviewed her on 25/07/14 and detained her as a mentally disordered person… Dr S reviewed Ms Woolley on 28/07/14 and found her to be a mentally ill person… requiring hospitalisation as the least restrictive form of care to prevent potential harm.
…
The first day of Ms Woolley’s admission she attempted to abscond from hospital. She lacks insight with regards to her psychotic symptoms and the need for inpatient treatment. She does not understand the potential risks posed to herself in the community before admission to hospital…
She has been visited by her family throughout this admission. The first visit she examined the children whilst in hospital. The most recent visit has gone better where she hasn’t felt the need to examine or question them about their welfare… She indicated that it would be good for the children to attend a GP weekly to ensure they have not been abused.
…
…Ms Woolley is too unwell to make rational, informed decisions for herself… Her behaviour would jeopardise current relationships with family and friends.
After the inpatient treatment she received, a mental health community treatment order was made for the mother to attend at the (omitted) Community Health Centre to obtain treatment from Dr J for her mental health illness. The treatment plan is dated 20 August 2014.[25] The order expired in February 2015.
[25] Exhibit 6, yellow tab 12
On 24 September 2014, during the time she was receiving treatment under the mental health community treatment order, the clinical impression notes as follows:
Ms Woolley is recovering from a psycotic (sic) episode floowing (sic) from a period of increased stress after marriage breakup and consequent upon financial problems.
Ms Woolley describes this current episode as the third episode where she has “lost control of her thoughts” during times of stress and become very concerned about her safety and the safety of her children.
Ms Woolley has good insight into her needing to slow down and look after herself and continue to take medication to avoid future episodes.
Ms Woolley is more willing to see a psychologist to look at her chronic underlying fears which are behind her paranoid psycotic (sic) episodes.[26]
[26] Exhibit 11
The mother moved back to Sydney from the (omitted) in early 2015, after the community treatment order lapsed and was attempting to disengage from mental health services. She was only seen on an infrequent basis.
In letter dated 2 June 2015, Dr J who was treating the mother pursuant to the mental health community treatment order indicated that as at the date of examination[27] the mother was “bright and engaging” and “there was no evidence of mood or thought disorder and no psychotic symptoms”.
[27] Presumably approximate to the date of the letter
At that time the mother was continuing with her visits with the community mental health nurse and with the medication which had been prescribed to her.
While not all such records are Exhibits before the Court, in preparing the Family Report, Dr L had access to and perused the subpoenaed material in the proceedings. Noted at the commencement of the Family Report is the following:
a)In the notes from (omitted) Hospital:
25 June 2015: maternal grandmother concerned about the mother’s mental health state. Breakdown in living arrangements with maternal grandmother, mother was living in a caravan in the backyard of the grandmother’s house.
On 27 July 2015, Ms L, a long term friend of the mother’s telephoned the (omitted) Community Health requesting advice in regards to the mother. The mother was staying with Ms L at the time as she had had a falling out with her mother. Ms L reported of the mother:
She doesn’t even admit she has a problem. Not currently taking any medication. She is quite manic and repeats herself over and over and talks to herself constantly – conversations are very strange and she appears to be on the brink of another breakdown…
The mother describes her parents as “too distant, uncaring and abusive.”[28] She goes on to say:
[28] Exhibit 2 - paragraphs 21, 44, 49 of proof of evidence
My Family, including my brother, father and mother are no longer of any support top (sic) me and I have cut ties entirely with my Mother in order to proceed into a life of my own with a more appropriate support system around me based on the abusive system I have come out of.…
My parents are estranged, my long-time friend Ms L is estranged…
If I had been in the hands of a caring family I would have been removed from the hospital at (omitted) immediately and cared for privately but as my Mother is now an accused abuser I am willing to assume that she was and is not interested in my achieving at all but would rather see my demise…
Dr R
On 6 July 2015 the mother was referred by Dr Y to Dr R, psychiatrist. The letter to Dr R read: “The court wants her to see a psychiatrist every three months.” A mental health assessment was enclosed, which indicated the following history:
Attended (omitted) Hospital for panic/anxiety in he (sic) past. Has been admitted to Hospital last hear for 5 weeks for manic episode. Moved to the (omitted) to live with mother. Attends counselling session at (omitted) Hospital every 3 months, Sees psychiatrist Dr J at (omitted) Hospital. Now discharged from their care.
The mother saw Dr R on 3 occasions: 1 September 2015, 2 December 2015 and 29 March 2016.
The mother has maintained throughout the hearing that she does not and has not suffered from schizophrenia and that she had Adjustment Disorder with Anxious Mood.
Importantly for the mother’s case is the letter from Dr R dated 1 September 2015, which was provided to the mother. The letter reads:
This is to certify that I assessed Ms Woolley on Tuesday 1 September 2015.
She separated from her husband in November 2011, after being together for 20 years. They have three children, two boys aged 15 and 12 and daughter seven.
Prior to her hospitalisation in 2014, she had no past history of psychiatric problems. Since her separation, she has experienced one or two brief episodes of anxiety. In July 2014, she hit a kerb and damaged her car. She became upset and police were called. She was admitted to (omitted) and remained there five weeks. She was diagnosed with Schizophrenia and treated with Abilify.
In my opinion, there is no evidence to support that diagnosis. It is more likely that she suffered an Adjustment Disorder with Anxious Mood. I could find no evidence of psychiatric disorder when I assessed her on 1 September 2015. In my opinion, she does not need any further psychiatric assessment or treatment. She has not been on medication for several months.
Also in evidence is a letter from Dr R to Dr Y reporting on the outcome of treatment. Dr R stated:
Thank you for asking me to see this 41 year old woman who separated from her husband in November 2011 and thereafter had shared care of their three children, two sons aged 15 and 12 and a daughter seven. However, she began to feel harassed by her ex-husband and one day in July 2014 she was driving her car somewhat too rapidly when she hit a gutter. She drove to a mechanic but was told she should have gone to a smash repairer. It seems then she possibly panicked a little and became a little out of control and the police were called. She was taken to (omitted) and admitted there for five weeks. She did not appear before the Tribunal until four weeks after admission and was then discharged from the Mental Health Act. Evidently there was a working diagnosis of Schizophrenia. After discharge she saw Dr J at (omitted) and, according to her, he didn’t think she had Schizophrenia and nor do I.
She struck me as a somewhat volatile person and I suspect that what happened in July of last year was a degree of anxiety. She was treated with Abilify and Paroxetine while in hospital but has not been on any medication for the past few months.
She has no history of psychiatric disorder prior to 2014, she has only been a social drinker, and has not used recreational drugs apart from experimenting as an adolescent. I have given her a letter stating that in my opinion she does not have a major psychiatric disorder, and that I do not think that the court directions to see a psychiatrist every three months is necessary. I will not be seeing her again.
The Progress Notes of 2 December 2015 indicate that the mother returned because the Court had ordered her to see a psychiatrist, however, Dr R was not prepared to take that on. Dr R had told the mother that he had not discovered any significant mental illness in her and that if the Court did not accept this they would need to go and get a second opinion from a forensic psychiatrist.
When the mother returned to see Dr R on 29 March 2016, he indicated again that in his opinion “there is no evidence to support a diagnosis of Schozophrenia”.
It appears that Dr R only had available to him the limited information from the mental health assessment from Dr Y, and what the mother had self-reported.
In respect of her mental health difficulties the mother most recently said as follows[29]:
… I have since been diagnosed with anxiety and an adjustment disorder which I am monitoring and have a health plan, counsellor and GP to support me …
My initial diagnoses (sic) has been investigated for the last two years and I have been rediagnosed for some months now with adjustment disorder and anxiety… I have suffered from terrible discrimination, liable (sic) and defamation of character. These accusations have been based on the children’s information, my mother’s information, my ex-husband’s information and the disability employment services team all of whom I have suffered some kind of abuse or discrimination from.
Recent Events
[29] Exhibit 2 – paragraphs 43, 46 of proof of evidence
On 26 September 2015, the mother attended (omitted) Police Station. She demanded a report that she is not suffering from Bi-polar disorder and she produced a doctor’s certificate stating that she had been misdiagnosed and had not been medicated for several months.[30]
[30] Exhibit 7, tab 18.6 (event reference (omitted))
On 27 September 2015, the mother attended (omitted) Police Station again. She wanted to obtain an Apprehended Violence Order against the father on the basis that she would be attending a family event soon and she did not want the father to approach her. She stated that there was no current domestic violence incident, that she had no fears, that her children were not involved, that she had no injuries, that no intimidation existed and that no threats had been made.[31]
[31] Exhibit 7, yellow tab 18.3 (event reference (omitted))
The mother has alleged that on 19 October 2015, the father entered her home and raped her. The Police records indicate that the mother was not sure if it “had actually happened or she dreamt it.”[32]
[32] Exhibit 7, yellow tab 18.2 (event reference (omitted))
The father denies any such allegation of rape. The first time that the father found out about the allegation was on 30 October 2015 when he was telephoned by (omitted) Police. The father and his wife co-operated with the Police investigations and the father provided a DNA sample to the Police. The Police have indicated to him that he has been ruled out of the investigation.[33]
[33] The father has never been charged
After being told by the Police about the rape allegation on 30 October 2015, the father formed the view that the mother was suffering from a mental health episode and that the children would not be safe in the mother’s care at that stage. The children did not spend time with the mother between October 2015 and April 2016 in accordance with existing orders but rather for two hours each weekend. The mother appeared to be confused and forgetful at times with respect to the arrangements for the children. The mother and children continued to have telephone conversations, during some of which the mother appeared to be confused.
In January 2016 the mother advised the father that she had made a report to Family and Community Services[34] about X’s foot. The child had suffered a sporting injury, had surgery and was undergoing physiotherapy.
[34] FaCS
In February 2016, the mother advised the father that she had made a further complaint to the FaCS about bruises on Z’s shins. The father was aware that Z had a bruise on her leg, probably from playing at school.
On 21 April 2016, the mother attended upon her GP. During the consultation “…she alternated to speaking rationally for a few minutes which the (sic) descended into shouting and crying about her present situation. This scenario continued for over 30 mins.”
On 26 June 2016, when the children were returned to the father after spending time with the mother, they reported that the mother was yelling and swearing, that she had stomped on a soft toy at the car park because she was so angry and that she had said to the children that their father wanted her dead in a hole so he could stomp on her and so a dog would eat her. The children were all feeling worried and scared. X said to the father afterwards that what the mother had been telling them sounded reasonable and that they didn’t know who to believe.
When she was cross-examined about this episode on 26 June 2016, the mother admitted to being angry with the children, to stomping on a soft toy [35] and to saying that their father would prefer if she was not in the children’s lives, that she was dead and buried. The mother said that she was entitled to have her say and to explain to the children what was going on[36].
[35] Although she initially had said words to the effect ‘it must have gotten under my feet’
[36] Namely that the father and his wife thought the mother was psychotic, but that she wasn’t and that she was suffering from anxiety and taking medication.
The mother has not been compliant with medication or therapeutic treatment with respect to her mental health issues. She has little, if any, insight into her mental health vulnerabilities and the need for ongoing treatment and assistance.
As Dr L pointed out in her evidence, research studies have confirmed that the coming together of therapy and medication is what provides the best outcomes for mental health patients. One of the roles of mental health specialists because of the ongoing relationship with clients is that they are able to assess any signs of mental health deterioration in their clients. It was very concerning to the expert that the mother unilaterally decided not to comply with the recommended regime of mental health care.[37]
[37] Dr L was asked in cross-examination about the mother reporting to her counsellor in February 2015 that she had taken herself off mental health drugs, that she had not followed the recommendations from her GP regarding the need to see her psychiatrist on a more frequent basis, that since that recommendation in April 2015 she had not seen her psychiatrist at all (or any psychiatrist) and that she only takes one anti-depressant per day (as given to her by the GP)
The Evidence of the Report Writer
Dr L was “blown away” at the mother’s application for the children to live with her and spend time with the father. She said that it was the father who had been a consistent, reliable and fair presence in the children’s lives. They boys had clearly stated that that’s the household where they perceive their safety and security needs have been met.
Dr L had assessed that the father had very much been helping the mother at times when there was some kind of disorganisation around meeting the needs of the children.
She wondered at the mother’s proposal particularly considering her affidavit material where the mother made reference to lack of support persons in her life. Dr L said that the mother’s proposal leaves the children at risk if there was to be further relapses or inabilities on the mother’s part.
The mother’s proposal, given her current living circumstances as set out in her Affidavit, highlighted to Dr L serious limitations. It raised for the expert questions of stability and security for the children and also raised questions about the capacity of the mother to plan for the needs of the children.
The risk to the children, arising as a result of the mother making allegations against the father in the future, was also assessed by Dr L. Such risks, as a result of the destabilisations that this will create for the children in their father’s household and their relationship with the mother as a by-product of either becoming directly or indirectly involved with allegations, stood to confirm the recommendations made in the Family Report.
Dr L’s assessment of the mother was that she did not have a lot of insight regarding her behaviour at the time that she suffered the psychotic episode. If the children are exposed to psychotic behaviour during time with their mother or behaviour that is undermining and information soliciting that is damaging, it places children at some risk and that may lead to the children withdrawing. Some of the mental health episodes which the mother has suffered have been of a serious nature that has placed the mother and others at serious risk – because of the dangers that have been inherent at times when the mother had episodes of psychosis.
Dr L was of the opinion that there needed to be some transparency as to the mental health wellbeing of the mother. If there was to be a relapse or incidents of episodes of mood disorder or psychosis that needed to be factored into time the children spend with the mother.
In respect of the father, Dr L was of the view that the fact that none of the children expressed any views that countered them having a meaningful relationship with their mother, was testimony to the father’s and his wife’s capacity to keep the mother alive in the children’s minds:
… it’s often not the case that the parent who has primary residence of children is able to foster/nurture the relationship with the other parent and there are no indications from the children that their relationship in any way had been undermined, given reason for alienation on part of father or Ms P – this is strength. They still want a connection with her.
The father was said to have been fairly very discerning and very fair in way he had in the past made calls suspending time between the children and the mother due to his concerns about the mother’s mental health.
In answer to the mother’s questions as to whether the children were aware of the father’s ‘accusations and allegations’ against the mother in respect of her mental health, Dr L said as follows:
They didn’t make disclosures to me that they had been involved in adult conversations. I think that they perhaps have been in the incident for example that happened at the park. If there was conversation about their father that’s inappropriate but the children – compared to children in family law disputes - they certainly didn’t present like children who have been highly or to any extent as children who have been exposed to details of the allegations or details of the proceedings. Their disclosures were based on their relationship with yourself, Mr Woolley and Ms P and with each other and I saw that as a very healthy presentation on the part of the children, notwithstanding all of the difficulties that have occurred, they have been shielded.
Of the children’s relationships with the parents, Dr L said that:
The children have had stability, security, in the household of the father and they have had a bit of an up and down ride with the mother; they sometimes saw the mother they knew and sometimes a mother that is confusing to them. It would be a dreadful loss to the children if they were to have no time with the mother, and there is a risk that the children, Y in particular, would seek the mother out if there were no spend time with orders.
Dr L recommended that the children attend as a unit when spending time with the mother, and that until such time as Z was about 12 or 13, she should not be spending any time alone with the mother. Dr L opined that Y was particularly vulnerable as he felt quite responsible for the mother’s wellbeing. The children were assessed as a fairly intact sibling group, who have been through times when they have had to be there for each other, particularly while in the mother’s care.
In the opinion of Dr L:
Where there are mental health issues with a parent the combination of hereditary and environment is what makes a person vulnerable to mental health concerns, I would think stressors for example allegations that require investigation, stresses regarding observing mothers dysregulation would be … uncertainty of the mother’s state of health, would all be factors that the children should be shielded from.
…
A meaningful relationship needs to happen in the context of the children feeling safe, not being grilled for information, allegations that are unfounded, there were some very serious concerns about how that was being managed…
Parental Responsibility
The question of parental capacity to implement arrangements and to communicate and resolve difficulties are important issues in this matter. This is particularly so because of the importance to the children and the mother of the mother being involved in the children’s lives and because of the cooperative relationship which existed between the parents for a number of years after separation.
The Court has in particular, considered[38] the matters under section 60CC (2) & (3) which are relevant pursuant to section 61DA(4). The Court finds that there is sufficient evidence of poor behaviour and lack of a child focus from the mother and poor communications between the parties due to the mother’s behaviours that make the sharing of parental responsibility very difficult and not in the children’s best interest.
[38] See under headings “Primary Considerations” and “Section 60CC(3) Factors” in these reasons
The Court finds that the presumption of equal shared parental responsibility is rebutted.
An order for sole parental responsibility is therefore made.
Section 60CC(3) Factors – Secondary Considerations
Children’s views
The children have expressed to the father that they do not wish to spend long periods of time with the mother.
The oldest child X, did not have too many memories of the family living together as a unit. He did recall after separation and for several years, moving between his parents on alternate weeks.
X indicated that the current arrangements work well, that moving between houses had been tedious and that he found it easier to stay in one house.
Y said to Dr L that maybe his living arrangements could go back to being with his mother on alternate weekends.
At times, Z has expressed to the father and his wife that she did not want to spend time with the mother and there have been difficulties at changeover.
The views of the children, in all of the circumstances, while of significance, weight needs to be considered in light of the identified risk factors.
Nature of the Children’s relationships
The children, despite all of the difficulties experienced in relation to their mother, have loving relationships with each of their parents, and also with their step-mother.
X described his father as the more reliable parent and described him as a kind fun person. He described his step-mother as helpful and very organised. While the children were living with their parents on a week about basis, X had found it easier to do homework at his father’s place because his father and step-mother helped him with it.
X described his mother as anxious and annoyed and that she suspected that the father had stolen the children from her. X said that the mother sometimes talks over him and that he does not feel listened to by her.
Dr L assessed X as most likely longing for a relationship with the mother he knew and is struggling with the person she is now. X seems to be distancing himself and adopting and externalising strategy in the way he manages his feelings.
Y described his father as a helpful and playful parent who is always happy and nice. He described his mother as helpful and funny but also as stressful and very talkative. Y’s relationship with his step-mother was described in a positive manner.
Dr L noted that Y presented as a more even tempered and calm child than X, who is perhaps trying to be non-partisan and to please both parents. Y was assessed as carrying some of the responsibility for his mother’s emotional sustenance; especially as her other social supports were dwindling. This was not an appropriate role for a child to be taking on.
Z said that her father is funny, loving and caring. While she used similar words to describe her mother, she also added that her mother sometimes does not think properly and forgets things that she is told. Z described her step-mother as fun and someone who gives good cuddles. When speaking to Dr L, she stated that she is living mostly with her father and step-mother because her mother is sick. She added that she does not really understand that as her mother does not act like she is sick.
The children have a close and loving relationship with each other. X describes himself and Y as quite good friends, as well as brothers, a sentiment which is reflected by Y’s description of the relationship. Z is described by both of her brothers in a positive way and she considers each of her brothers to be caring and fun.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child
It appears from the evidence that the parents have to date co-operated in relation to long-term decisions for the children, such as their schooling. However, this cooperative relationship has been breaking down over the years particularly since the mother was hospitalised in 2014.
The mother has spent limited time with the children since October 2015. This was due to the father’s concerns about the mother’s behaviour and the risk such behaviour posed to the children. The mother certainly was and remains of the view, that the children should be spending much more time with her and indeed that they should be living with her.
The mother has taken all reasonable[39] opportunities to spend time with the children and to communicate with the children. It is the mother’s lack of insight into her behaviours and the impact of those behaviours on the children, which has resulted in the children spending less time with the mother then might otherwise have been the case.
[39] Reasonable in the context of the mother’s views about her mental health vulnerabilities and her lack of insight
Parents’ obligations towards maintaining the child
The children currently live with the father and he provides for them financially.
The mother has previously been assessed for child support but it appears that the child support payments may not up-to-date or that they had been assessed at a lesser amount than they should have been. The father does not make any complaint about lack of compliance by the mother with child support payments.
Likely effect of any changes in the child’s circumstances
The children have been living primarily with their father since July 2014. Prior to this and for a period of about two years there was a shared care arrangement in place.
The children are settled in their home, where they are safe, well looked after and well protected. They have a close and loving bond with their father and his wife.
The father’s application sees no change to the children’s current circumstances. It also provides for protection of the children from risk of harm while they are spending time with the mother.
The mother’s application would entail a significant upheaval in the children’s lives, including a change of residence and supervised time with the father. Orders as sought by the mother would place the children at an unacceptable risk of harm as noted elsewhere in these reasons. It is an application that is ill considered, given the practical difficulties and restrictions of the mother’s current living circumstances.
Practical difficulty and expense of a child spending time with a parent
There is no practical difficulty or expense associated with the children spending time with either of their parents, although there would be some practical difficulty and expense if orders for supervised time were to be made. This factor is not of any particular significance in the circumstances of this case.
Capacity to provide for needs of the children
X and Y attended (omitted) High School, where they are both doing reasonably well. Z attends (omitted) School where she is doing very well with great results. All three children attend extracurricular activities, which the father[40] is supportive of and actively involved in. The father[41] is actively involved in assisting the children with their homework and school projects and assignments.
[40] The same is true of the children’s step mother
[41] The same is true of the children’s step mother
The father has a demonstrated and significant capacity to meet the children’s emotional needs. He has been a “soft place for the children to land”[42] at times when the mother’s behaviour has been irrational and confusing to the children. The father has ensured that the children’s relationship with their mother is not negatively affected by the mother’s sometimes erratic and unpredictable behaviour and that the children are shielded from their mother’s mental health problems.
[42] See evidence of Dr L
The mother, on the other hand, has not demonstrated any significant capacity to meet the children’s emotional and intellectual needs. Indeed, she has demonstrated a very limited capacity. While the children were living week about with each of the parents, the mother had difficulty in getting the children to school on time and in ensuring that their school work was done in a timely manner.
Prior to being admitted into hospital in 2014 the mother had been engaged in behaviours which put the children at risk. At the time the mother did not realise this. She has not given any evidence during these proceedings which would lead the Court to the conclusion that she has reached such realisation now.
Between July 2014 and the date of the hearing, the mother has continued to demonstrate a limited capacity to meet the children’s emotional and physical needs. Such findings are based on the evidence of the report writer as well as the mother’s own evidence.
The mother currently lives in shared housing and despite her application for the children to live with her, has no firm plan as to what arrangements she would need to have in place to provide the children with appropriate and adequate accommodation and how she would meet the children’s basic day-to-day needs.
Maturity, sex, lifestyle and background of children and parents
There is nothing in respect of the maturity, sex, lifestyle and background of the children and the father which warrants particular mention.
The mother has since separation had, what may be called, an unsteady and transient lifestyle. She has had a number of changes of employment, a number of different residences, she has been homeless and she has had two different people living with her from time to time, both of whom she has made complaints about to the Police.
Neither of the parent is an Aboriginal or a Torres Strait Islander.
Attitudes to the children
Indicative of the mother’s attitude as displayed throughout the proceedings to the children and the father and the mother’s lack of insight into her own behaviours, was the “Chronology” the mother relied upon[43] which stated:
The mother married the father in 1999 and continued a relationship with the father showing derogatory attitude towards the mother from early on in the relationship. The children have been taught the same kind of attitude towards their mother and the mother has chosen to separate from the father. The father has continued to encourage the children to show disrespect and discouraging attitudes towards their mother and several other members of the family and friends. The separation was the result of the idea that some kind of respect would form through the actions of the mother. Instead the children have formed the opinion that life with a single parent is too hard and that a continued simple existence with a replacement mother and their father was immediately necessary and much easier. The children have my love but certainly not my esteem with regard to their lazy decision to live in a single home instead of a share (sic) care arrangement.
[43] Exhibit 2
Whether this is because of some underlying mental health issue[44] or simply because this is what the mother is like, is not a matter which the Court needs to determine.
[44] Noting the mother denies she has any such underlying issue
The Court finds, having observed the mother during the hearing and listening to her evidence and submissions, that she has little, if any, insight into her actions and a very poor attitude towards the children.
The Court also finds that if the children were to live with the mother, she would not facilitate and promote the children’s relationship with the father.
Allegations of Family Violence
The mother makes numerous and significant allegations of violence against the father and his wife, none of which are supported by any probative evidence.
The mother alleges that the father is both physically and sexually abusive towards the children, however the mother does not give any, or any sufficient, particulars in relation to the general allegations she makes.
The mother alleges that the father’s wife is both physically and sexually abusive towards the children. The mother does not give any particulars of such allegations.
The mother has made some notifications to FaCS in relation to her allegations that the father and his wife have been abusing the children. There is no evidence that FaCS has taken any steps for the children’s protection as a result of the notifications which were made after making appropriate assessments.
The mother alleges most recently[45], that the father entered her home and raped her. This matter has been reported to the Police and as mentioned earlier in these Reasons, the father cooperated fully with the police investigation and provided a DNA sample to the Police. The father has been advised by the Police that he is not a suspect. Importantly, when first reporting the matter to the Police, the mother said that she wasn’t sure whether it had really happened or if she had dreamt it. During the final hearing the mother was adamant that the rape had occurred and that the father was an abusive and violent man.
[45] October 2015
The mother continues, whenever she sees the children, to inspect them for bruises and to question them about her perceived abuse of them by the father. Such actions are themselves emotionally abusive of the children and place the children at risk of harm as explained by Dr L in her evidence.
The mother believed that the children were not safe in the father’s care in about early-mid 2014 before her hospitalisation. She continues to hold such beliefs. The Court finds that these beliefs are not reasonably held nor based on any objective evidence.
There are no family violence orders in place.
Likelihood of further proceedings
The orders which are going to be made take into consideration the extreme vulnerability of the children[46] and the need for their living arrangements to provide them stability and security.
[46] Exhibit 1 – Family report paragraph 62
The father sought orders akin to those previously made on an interim basis in respect of the mother continuing to attend upon a mental health specialist or similar and for that specialist to provide the father with information if he/she is of the view that the mother’s parenting capacity is impaired as a result of a mental health episode or similar. The difficulty with this proposal is that the mother is of the firm view that she does not need any additional treatment than she is currently receiving and she has been told by Dr R that he would not provide any such ongoing treatment. In all of the circumstance, the Court is not satisfied that such an order would do anything but create further difficulties for the parties and may of itself lead to the institution of further proceedings. It is not an order which is in the children’s best interests.
When the mother had behaved in a concerning manner in the past, the father had taken steps to ensure the safety of the children and to ensure that the children were not placed at an unacceptable risk of harm. The father has had the common sense and insight in the past to act in a protective manner towards the children and in the children’s best interests in respect of the time the children were spending with the mother. The Court finds that the father will continue to do so in the future.
In addition, the father has sought an order restraining the mother from commencing any further proceedings without first obtaining the leave of the Court. The father is the Applicant herein. The mother has not acted in a manner which is suggestive of a vexatious litigant or where she has in the past filed any applications which were frivolous or vexatious or an abuse of process. There was no indication by the mother that she would do anything but comply with the orders and indeed she has to date complied with interim parenting orders.
The Court is not satisfied that an order as sought by the father requiring the mother to obtain leave before she could file any application with respect to the children is an order that is warranted or in the best interests of the children.
Other relevant matters
The Court has paid close attention to the evidence of Dr L in regards to the impact of the mother’s behaviours on the children and the risk to them if the mother continues to behave in similar ways. Such matters have also been taken into account when assessing the primary considerations pursuant to s60CC(2).
Coupled with the mother’s allegations of significant violence, including rape, against the father is Dr L’s assessment of the mother and her concern about the extent to which the mother is in touch with reality. Dr L opines:
Most perturbing is the impact this might have on the children if they continue to be exposed by their mother to rational and unfounded questioning of the experience in their father’s household and surveillance the potential signs of abuse…
Dr L[47] likewise identified serious concerns, which the Court finds to be risks of harm, about the mother’s insight into the duration and severity of her mental health concerns. She noted that there was a significant disjunction between the mother’s reports of her own mental health fragility and the material that is contained in the subpoenaed documentation.
[47] Ibid, paragraph 60
The mother minimises the severity of her symptoms and her lack of ongoing monitoring and compliance with recommendations by mental health professionals has the potential of leaving her quite vulnerable to a relapse and has the potential of placing her and those around her at significant risk.[48]
[48] Ibid
Primary Considerations: s60CC(2)
The Act does not mandate the discussion of considerations under s60CC in any particular order and it is well recognised that additional considerations may outweigh primary considerations.[49] However, the relevant facts of this case are such that the need to protect the children from harm is a matter which is at the forefront of the Court’s deliberations.
[49] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations set out in sub-s 60CC(2), the Court must give greater weight to the consideration set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having carefully considered the facts set out earlier in these Reasons[50] the Court finds that the children if they were to spend significant and substantial time with the mother would be placed at an unacceptable risk of harm. Indeed any order for time between the mother and the children places the children at risk of harm. Likewise there are risks to the children if there was to be an order for no time with the mother. It is therefore a matter of weighing up the risks and the benefit to the children of having a meaningful relationship with their mother.
[50] In particular paragraphs 61 – 130, 157, 177, 185 - 188
It has been held that a meaningful relationship is one which is important, significant and valuable to the child[51]. The focus is not on the relationship as such but on the benefit the relationship might have for the child.
[51] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC at [121]
Despite the limited time which the children have spent with the mother particularly since October 2015, and all of the difficulties which have been encountered by the children while spending time with their mother, they have managed to maintain a meaningful relationship with the mother.
In all of the circumstances the Court finds that there is a benefit to the children of spending limited time with the mother and thereby continuing and maintaining a meaningful relationship with her.
The orders which the Court is making have safeguards in place to ensure that the children are not placed at an unacceptable risk of harm during periods of time that they are spending with their mother.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out in the forefront of these reasons.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 28 September 2016
Key Legal Topics
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Family Law
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