ZSP and AH
[2007] FMCAfam 607
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZSP & AH | [2007] FMCAfam 607 |
| FAMILY LAW – Parenting – application by mother for child aged 10 to live with her – child currently living with father and not spending any time or communicating with mother pursuant to 2004 Orders – child’s views – the need to protect child from physical and psychological harm overrides consideration of child having meaningful relationship with mother – mother’s mental state. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | ZSP |
| Respondent: | AH |
| File Number: | SYM 3088 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 7, 8 & 19 February 2007 and 21 & 22 May 2007 |
| Date of Last Submission: | 22 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Gibbons |
| Solicitors for the Applicant: | Fay Rose Legal |
| Counsel for the Respondent: | Mr M Anderson |
| Solicitors for the Respondent: | Adamson Solicitors |
| Solicitor for the Independent Children’s Lawyer: | Delaney Lawyers |
THE COURT ORDERS THAT:
All previous parenting orders in relation to the child Chloe Harris (not her real name) born November 1996 [“Chloe”], be discharged.
Chloe live with the father.
The father have sole parental responsibility for Chloe and the father be permitted to obtain a passport for Chloe without the consent of the mother.
There be no Order for Chloe to spend time with or communicate with the mother.
The father forthwith serve a sealed copy of these Orders on the Principal of Chloe’s school.
The Court notes the father will facilitate Chloe spending time with or communicating with the mother should Chloe express a wish to do so, any such time to commence on a supervised basis.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3088 of 2006
| ZSP |
Applicant
And
| AH |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for a female child, Chloe aged 10 years, born November 1996. The parties never lived together and had a relationship of only 2 months. Chloe did not spend time with her father until she was 4 years old and then only once a week during the day. Chloe lived with her mother until at 6 years of age in mid-2003 the Department of Community Services removed her from her mother’s care and placed her with her father. Chloe has since lived with the father and had no communication with the mother. Orders were made in the Local Court-Family Matters in June 2004 to reflect that arrangement.
There is a current apprehended violence order against the mother for the protection of Chloe and the father which expires in March 2009. The father claims Chloe was abused and neglected while in the mother’s care and that the mother “appears to drift in and out of treatment for her mental illness…” The mother denies the allegations of abuse and neglect, denies she has ever suffered a mental illness and claims that Chloe was “kidnapped from school” by the father and removed from her care in June 2003 without explanation or justification. She blames the father for the present situation. The mother asks that Chloe live with her and not spend any time with the father. The father asks for a sole parental responsibility order and that the mother’s application be dismissed.
This matter did not follow the usual course. The father was represented by counsel. Mr Hearl appeared as the Independent Children’s Lawyer. Mr Hearl had appeared as the Independent Children’s Lawyer in the 2004 proceedings. The matter was originally listed for hearing on 7 and 8 February 2007. A family report was ordered from the same consultant who prepared a report in June 2004. Neither party nor the Independent Children’s Lawyer requested an expert report. An interpreter in the Persian language was appointed to assist the mother. On the first day of hearing, Ms Gibbons of counsel announced her appearance for the mother. She advised she may be seeking an adjournment because in her view, the mother’s case was not ready. A few minutes later, Ms Gibbons withdrew. The mother then appeared for herself. The mother did not seek an adjournment. The matter was not completed in two days. At the end of the second day of hearing, I raised the possibility of the need for an expert report before the matter proceeded further. The matter was stood over part-heard. On 19th February, Ms Bateman of counsel, announced her appearance for the mother. She sought an adjournment of a further week. I adjourned the proceedings until 8 March 2007 for return of subpoena and for an order to be made for a Part 15 Rule 9 expert. I also adjourned the further hearing of the matter to 21 and 22 May 2007. On 8 March 2007, the matter was again adjourned to 20 March 2007 in relation to the question of an expert report because the Legal Aid Commission had not agreed to pay the costs of an expert. On 20 March 2007, an order was made for the appointment of an expert to address a number of questions including whether the mother suffers from “a mental disorder, a personality disorder, an emotional disturbance or disorder” or has suffered from any such disorder in the past, in particular from 1995. On 23 April 2007, I dismissed the mother’s oral application to discharge the Independent Children’s Lawyer. When the hearing resumed on 21 May 2007, Ms Gibbons of counsel, appeared for the mother. Dr Quadrio, consultant psychiatrist had by then prepared a report on the mother’s mental state. She had read the affidavit material filed in the proceedings, the documents produced on subpoena, the two family reports prepared by Ms Cullen, and had interviewed the mother.
Although it was common ground that the mother has been admitted on an involuntary basis to the psychiatric facility at St Vincent’s Hospital known as Caritas, on a number of occasions since 1998, Dr Quadrio’s report was the only comprehensive psychiatric assessment of the mother available to the Court. At page 50-52 of her report, Dr Quadrio gives her opinion about the mother:
Ms Palmer has a complex psychiatric history with a combination of recurrent psychotic episodes and a fundamental personality disorder…there is also a consistent pattern of intimidation and harassment and at times stalking behaviour…
However, most of her current presentation and much of the documented history can be conceptualised as Personality Disorder, chiefly Cluster B (narcissistic, borderline, histrionic, antisocial) and with some Cluster A (paranoid) features as well…
Thus, Ms Palmer manifests a long term pattern of behaviour characterised by narcissistic entitlement. She is highly adept at inducting various individuals and agencies to act on her behalf with respect to financial assistance, housing, legal and other practical matters. She shows an inability to shift from a profound sense of entitlement about her children and a lack of insight that other people experience her as harassing an intimidating…this type of narcissistic/paranoid/antisocial construct is frequently seen also in cases of stalking behaviour…
It is apparent that Ms Palmer has a remarkable capacity for rationalisation and can present in a most plausible manner as she did with this interviewer…
It is my view that the dominant issue is a profound sense of narcissistic entitlement, which means that Ms Palmer is unable to understand any point of view except her own; she has an entrenched sense of entitlement to what she believes is a fair outcome, which in this case is access to both children. She seems to have been impervious to feedback from the children that they do not wish to have contact with her and/or that they may feel frightened, or harassed by her.
When the hearing resumed on 21 May 2007, it was clear that the mother’s mental state and its effect on Chloe was a critical issue in the case.
Previous Orders
Chloe was born on 10 November 1996. On 24 October 1997 orders were made for Chloe to live with the mother with no order for Chloe to have contact with the father. On 17 December 2001 orders were made for Chloe to have contact with the father each Saturday. On 13 June 2003 an Emergency Care and Protection Order was made by the Children’s Court placing Chloe in the care of the father for 14 days and restraining the mother from approaching Chloe’s school. On 27 June 2003, the order was extended. On 26 June 2003 an interim apprehended violence order was made for the protection of the father and Chloe against the mother, prohibiting the mother from approaching the father’s residential premises, work premises or Chloe’s school or from approaching the father or Chloe. On 9 March 2004 the Mental Health Review Tribunal placed the mother on a 6 month Community Treatment Order following the mother’s involuntary admission to Caritas Psychiatric Unit from November 2003 until February 2004.
On 29 June 2004, orders were made at the Local Court -Family Matters by consent, providing for Chloe to live with the father and to have no time with or communication with the mother. Although the mother was represented at the time of the June 2004 orders, and Mr Hearl, the Independent Children’s Lawyer was involved in those proceedings, the mother claims at this hearing, that the signature on the only copy of the Terms of Settlement dated 29 June 2004 available to the Court, is not her own and at no time did she consent to Chloe living with the father. This is despite her counsel’s signature appearing on both pages of the document adjacent to her signature[1] the presence of an interpreter in the Farsi language at the court on the day of signing[2], and the father identifying the signature as the mother’s. Notably, the report for the Mental Health Review Tribunal hearing of 27 August 2004[3] states that at the time of the 29 June 2004 orders, the mother was unstable due to weeks without medication and that her reaction to the June 2004 orders was inappropriate “she stated that she felt relieved at no longer being responsible for her daughter, and also indicated that she was looking for a husband.” Shortly afterwards the mother travelled to Iran where she married. The mother did not appeal the June 2004 orders nor until January 2006 did she seek to have the orders varied. In Dr Quadrio’s view[4] the mother does have the capacity to understand legal proceedings. However, she goes on to say that the mother’s severe personality disturbance makes it very difficult for the mother to empathise with others or to accept any view but her own.
[1] Exhibit 5.
[2] Exhibit 8.
[3] Exhibit 3.
[4] Page 53 of her report.
There is a current apprehended violence order in place against the mother for the protection of the father and Chloe, for a period of 3 years, to expire in September 2009. The mother tells the Court her appeal against the order to the District Court was dismissed and that she has filed a further appeal in the Supreme Court of New South Wales, yet to be heard. She was unable to produce any documents to verify her claim.
Ms Cullen, a family consultant prepared two reports, the first in June 2004 for the Local Court Family Matters and the second in January 2007 for these proceedings. Ms Cullen recommends the present parenting arrangements continue without any order for Chloe to spend time with or communicate with the mother. Chloe was not observed with the mother for either of the Family Reports because of Chloe’s distress at the prospect of seeing her mother. In her 2004 report Ms Cullen says[5]:
Chloe was not interviewed with her mother due to Chloe’s extreme anger, fear and distress. In the counsellor’s assessment, contact at this time, without some long term preparation and counselling, would have negative emotional consequences for Chloe and be emotionally abusive.
[5] Page 2 of Ms Cullen’s 2004 report.
In her 2007 report, Ms Cullen says Chloe’s attitude has not changed and again she refused to see her mother.
Background
Each party was born in Iran and each is 46 years of age. The mother has a son from her first marriage she refers to as Alexander, but who is also known as John, now 18 years. The mother alleges that in 1996 John’s father “commenced the campaign” to have John live with him and persuaded Chloe’s father to support John’s father’s application for John to be placed in his care. She says “he [John’s father] called DOCS and the police complaining about my care of Alexander on a regular basis.” The mother says that in 1997 orders were made for John to live with his father and spend time with her every weekend, which she says was later reduced to alternate weekends and then to supervised time. She says “on the second contact occasion I was 10 minutes late Alexander and his father had left and I did not have contact ever again with Alexander.” John did not thereafter spend any time with the mother. The mother has not spent time with Chloe since she was removed from her care by the Department of Community Services in June 2003. The mother deposes:
Throughout the early months of 2003 either my ex-husband or the father would make an adverse report to police, was under constant siege from them because I would not give up on my son. They promised me that they would work together to take both children. There were allegations made in January 2003; February 2003; March 2003 and in May 2003 by either one of them. All of which I deny but of course all together they had a circumstantial damning effect.
Chloe lives with her father near Hornsby in rented accommodation and attends a local school. The father cleans and repairs Persian carpets from his home and otherwise cares full time for Chloe. The mother says she lives alone in Hornsby and has no relatives in Sydney. The mother re-married in Iran in mid-2004 and her husband remains living in Iran. The mother says her husband will not be coming to Australia. The mother is not employed though tells the court she has been on leave from her employment with Woolworths. A letter to the mother from Woolworths of 30 March 2006[6] tells her she must supply a medical certificate to explain her absence from work or she will be considered to have abandoned her employment. At the commencement of the hearing in February 2007, the mother said she must return to work in March 2007, but was not working when the hearing resumed in May.
[6] Exhibit 11.
Legal principles
The principles governing parenting matters are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in s.60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
As already noted, the status of the mother’s mental health is a critical issue in this case. I therefore consider this issue before considering the factors under s.60CC.
The mother’s mental health
The mother tells the court she has never suffered from a psychiatric condition and has never taken medication for a psychological disorder. The mother says she does not believe she has ever needed medication for a psychiatric or psychological disorder.
The mother’s evidence on this issue contradicts the facts contained in documents tendered in evidence and other evidence before the court and I reject it. The mother acknowledges to Ms Cullen in June 2004 that she has been sick and was currently taking medication under a Community Treatment Order.
I have earlier referred to the mother’s oral evidence at hearing that a signature in her name on the Terms of Settlement of 29 June 2004 is not of her own hand[7]. In cross-examination on this issue, the mother also denies signatures in her name on other documents are of her hand. When shown a copy of Terms of Settlement relating to an apprehended violence order dated 21 May 1997 the mother says the signature in her name on the second page is her own signature but the signature in her name on the first page is not. On a document dated 29 May 1997, she denies the signature next to the word ‘complainant’ is her own signature, though concedes she is the ‘complainant’ identified on the document[8]. The father identifies the signature as the mother’s on those documents. As earlier noted, when the Terms were signed at the Local Court-Family Matters on 29 June 2004, Mr Hearl was present and the mother was represented by counsel. Despite the mother’s denials, I am satisfied the documents on which the mother was cross-examined bear her own signature.
[7] Exhibit 5.
[8] Exhibit 6.
The mother has had a number of involuntary admissions to the psychiatric unit at St Vincent’s Hospital known as ‘Caritas’ between 1998 and 2002, when Chloe was placed in the care of strangers during each admission by the Department of Community Services. The mother had a further involuntary admission to Caritas on 27 November 2003 after Chloe had been placed with her father, and remained in Caritas for 3 months. The mother was subject to a Community Treatment Order for 6 months under the supervision of the Mental Health Team in the Northern Suburbs Health Service following her discharge from Caritas in February 2004. A report from her case worker at the time says the mother took medication for her mental illness and was for a period compliant with her medication. When confronted with these facts in cross-examination, the mother avoided the questions, employing a range of diversionary tactics.
The Department of Community Services sought and obtained an emergency care and protection order in June 2003 to remove Chloe from the mother’s care to the father’s care. The mother claims the father “kidnapped” Chloe with the consent of the school and the Department and claims the father forced Chloe to concoct complaints of abuse against her. The father’s evidence as to the basis of the emergency care order is consistent with the detail of events set out in the documents tendered in evidence from the Department of Community Services[9]. As a result, I am satisfied as to the following:
a)The Department received a large number of reports on Chloe from a wide range of reporters, dating from July 1997 when she was 8 months old, to June 2003 relating to concerns that Chloe was at risk of serious physical and psychological harm as a result of her mother’s psychiatric and emotional state[10];
b)At age 6, Chloe told a case worker at the Department in June 2003 that her mother “lies and has secrets.” Chloe said her mother starts fights, frequently hits and kicks her and she hits and kicks her mother back and “runs outside and goes to school.” She said her mother hits her with a stick on her bottom frequently and sometimes hits her face. She said her mother “breaks things and hits her on the head.” She said her mother shows her rude signs. She said she goes to her room to escape her mother and pushes something against the door to stop her coming in. She said her mother laughs at her because she hates her. Chloe told the case officer her mother gives her cold food “animal food it has red bits in it”. She said “if she went home with her mother, her mother would start punching her and put her in her room and laugh at her”;
c)In June 2003 the Principal of Chloe’s school notified Chloe as a child at risk on the basis of emotional and physical harm. Her report states:
Chloe presents as a happy settled little girl when she is in the care of her father. When she is with her mother, she does not attend school, complains of lack of food and hitting by her mother. When mother brings Chloe to school she sits with her in the playground refusing to allow her to play with the other children, follows her to the classroom, refuses to leave the classroom when asked to by teacher; calls out in Persian to Chloe who becomes very agitated and embarrassed…Chloe wishes to be with her father. She states this very strongly.
d)While the mother was subject to an order of 13 June 2003 restraining her from approaching Chloe’s school, the Principal reported to the Department of Community Services that the mother had been attending the school on most days in the morning and the afternoon and the police being called on several occasions. The mother would leave the school premises when the police arrived. The Principal reported the mother talking with students and parents telling them she has custody of Chloe, despite the order placing Chloe in the care of the father. When asked to leave, the mother stood at the school gate and walked up and down the street. On 24 June 2003, the Principal reported that the mother was still attending the school in breach of the order, and had hired a taxi to take food to Chloe at the school. She reported the mother asking two students to take food to Chloe, frightening them. At this time, the father reported the mother renting a car and following him and Chloe, frightening Chloe.
[9] Exhibit 4.
[10] Affidavit of case worker dated June 2003.
In June 2004, Chloe reports on her mother’s behaviour towards her to the Family Consultant, Ms Sally Cullen. Chloe reports being disciplined by having needles in the back of her hand, her mother putting a hot spoon on her hand and locking her in a dark room. The father says Chloe refers to “bad things” which happened when she was living with the mother including being taken downstairs in the middle of the night, being cold and the mother hearing voices, to being hit and placed in a dark room. Since Chloe has lived with him, the father complains of the distress caused by the mother telephoning him and sending SMS messages on a regular basis: “still alive, you not dying? I’m waiting to see that day”, “We will kick you out of are (sic) life” and “you have to pay for oll (sic) trouble you make”. He complains of the mother obtaining work at the Woolworths in late 2005 where he and Chloe shop, requiring them to change their shopping location. He complains of the mother frightening Chloe by arranging for strangers to approach Chloe to denigrate him. In early 2006 an Iranian woman approached Chloe and said ‘your father is a liar, and your mother is a good woman.’ The father says that about 12 months before hearing, Chloe reported the mother driving past their home and waving at her. He says Chloe was very frightened in the knowledge that the mother could find her.
On 25 July 2006 the mother contacted the Department of Community Services helpline. She told the Department they had given Chloe to a “criminal man” and they have “messed up” her life and Chloe’s life. She said that the father had “kidnapped” Chloe from her school with the Department’s consent and the school’s consent[11]. On 1 August 2006 the mother called the Department again to say she was not going to let them get away with what they have done. A month or so later, the mother called the Department to say that Chloe had been burned with hot water, without telling the officer that the incident was an accident and occurred many years earlier.
[11] Exhibit 4.
In her 2004 report, Ms Cullen says the mother blames the father for Chloe being angry and frightened and unwilling to meet with her. The mother denies anything in her past relationship with Chloe has caused Chloe’s attitude, insisting the father had influenced Chloe. Ms Cullen says the mother demonstrated little insight into her illness, claiming her illness only came because her children were taken away from her. Ms Cullen says[12]:
She acknowledged that she was on a Community Treatment Order at present and that she was taking some medication, but stated ‘they tell me I should take the medication so I won’t get sick, but in my view I don’t think it is important as I won’t get sick again.
[12] Page 4 of the 2004 report.
The mother denies driving past the father’s house and waving to Chloe and denies working at Woolworths because the father and Chloe were shopping there. The mother denies locking Chloe in a dark room; hitting or kicking her, denies touching her with a hot spoon, putting needles in her hand or hitting her with a vacuum cleaner cord. The mother denies harassing or stalking Chloe or the father though at interview with Ms Cullen in June 2004 said she sometimes follows Chloe in the park or shops, but the father will not let her talk with her[13]. The mother denies Chloe is frightened of her.
[13] Page 3 of the 2004 report.
In her January 2007 report Ms Cullen says the mother was very angry and unwilling to discuss any issues relating to Chloe after she heard that Chloe had again refused to see her. She continued to blame the father for Chloe’s attitude.
The mother denies the allegations made by Chloe’s school Principal concerning the mother’s behaviour at and near the school. She says soon after 11 June 2003 she did send Chloe’s lunch to the school in a taxi, though did not travel in the taxi. She says the lunch was returned to her and she did not send food again. She says she engaged a taxi to take her to the school on Chloe’s birthday as she was unable to carry a cake on the bus. She explained her efforts to have the cake shared with Chloe’s class, to being ordered by the Principal to leave the school, to being arrested by police and taken to Mulawa prison, being forced to share a prison cell with a convicted murderer and soon after being released to St Vincent’s Hospital. She did not acknowledge the order restraining her from approaching the school.
The mother’s condition has been given a number of different labels by her treating practitioners. The mother was admitted to Hornsby Hospital on 26 November 2003 for one day. The discharge summary states[14]:
Brought in by police on section 33 after [the mother] breached AVO by attending her daughter’s school. She presented distressed, agitated, thought disordered, expressing persecutory beliefs and was observed responding to auditory hallucinations. This lady has a long history of schizophrenia.
[14] Exhibit 3.
A report from Caritas dated 17 February 2004[15] describes the mother’s condition on admission to Caritas on 27 November 2003:
On admission, she was irrational, disorganised and expressing delusional ideas…she has been diagnosed with bipolar affective disorder and her recent illness thought to be a manic relapse…
[15] Exhibit 3.
On 12 December 2003 Dr Babidge, the mother’s psychiatrist at Caritas, reports[16]:
Her history is complex and marked mainly by almost constant legal problems relating to custody and access to her children, pursued through the courts. I have been involved with her treatment since 1998… her interactions with a range of agencies over several years, including police, DOCS, lawyers and mental health workers are best described as concrete, irrational and self-defeating, to the point where she has frustrated most attempts to seek a reasonable solution to her child access matters…She has always been insightless into her illness and refused treatment unless enforced under CTO’s.
[16] Annexure H to father’s affidavit sworn 22 January 2007.
Dr Babidge gives examples of the mother’s reported behaviour[17]: presenting at Rocks Police station sitting a whole day in the waiting room with Chloe, (then not 2 years of age) demanding action over her family law matter; neglecting Chloe while searching for her son; expressing delusions of misidentification; exhibiting disturbed behaviour at her department of housing flat (said to be harassing neighbours, scratching their doors, paranoid)…at hospital, demanding, angry, intense and insightless; refusing to cooperate with staff trying to help her, insisting on dealing with Iranian workers as her problem, is in her view, cultural. The mother was seen by an Iranian psychologist who assessed her as delusional and insightless. Dr Babidge says the most likely diagnosis is a chronic psychotic illness, probably a delusional disorder. He also considered a mood disorder, or severe personality disorder. While seeking a 6 week temporary patient order, he recommended anti-psychotic medication.
[17] Annexure H to father’s affidavit.
A report from Caritas dated 17 February 2004[18] describes the mother’s condition on discharge from Caritas at that time:
Though [she] has improved markedly, she still does not see the need for medication on discharge. She will almost certainly relapse…if she is non-compliant with her medication. She will put at risk her relationship with her children and her own social situation.
[18] Exhibit 3.
A report prepared for the Mental Health Review Tribunal dated August 2004[19] states that the mother suffers from a schizoaffective disorder which has had serious consequences for her in most aspects of her life. The report states that the mother is:
“an intelligent and attractive woman who remains cognitively intact and is expert at minimising and masking her inappropriate behaviours when she is ill. There have been problems in getting her to accept treatment voluntarily and she has been difficult to treat under the Mental Health Act due to her ability to present well before a Magistrate.”
[19] Exhibit 3.
There is no other medical evidence before me as to the mother’s condition until the short report of 3 October 2006 from the mother’s current treating psychiatrist Dr Graeme Henson of Metta Clinic, Pymble. Dr Henson says he has been providing the mother with “supportive therapy” since August 2006. In his opinion, outlined in his October report and confirmed in oral evidence in February 2007, the mother is not showing evidence of psychiatric illness. He believes there are cultural factors which have led to the mother’s present circumstances and that “some of her behaviour and reactions, as reported and observed in the past, represented her distress by [the two fathers] and having her children taken from her.” Dr Henson says he has observed the mother’s history of anxiety and depression as a result of her marriage, and her two children. Dr Henson had read two reports of Dr Babidge, and was aware the mother had suffered from mood disorder with a manic episode in 2004 for which she was prescribed medication. Dr Henson said he had been shown a report by a Dr Jordan dated June 2006 which says the mother was cooperating with taking a tranquilliser and an antidepressant. Dr Henson gave evidence before the mother was assessed by the court appointed expert, Dr Carolyn Quadrio in April 2007.
Dr Quadrio read all the material produced on subpoena relating to the mother’s admissions to hospital, the mother’s dealings with the police and the intervention by the Department of Community Services. She read the affidavits filed in the proceedings, including Dr Henson’s report and previous court orders relating to Chloe. She met with the mother. She prepared a comprehensive psychiatric assessment of the mother in a 60 page report dated May 2007, setting out in detail the matters she considered relevant to the assessment. Although the mother’s counsel questioned Dr Quadrio as to some of her findings, Dr Quadrio’s conclusions were not seriously challenged and I accept her evidence.
Dr Quadrio assesses the mother to have a profoundly narcissistic personality structure. She says the mother does not have a chronic psychotic illness though has had episodic decompensations and would have needed medication at those times. Dr Quadrio describes the mother as having an inability to understand her intrusiveness into other people’s space; as being highly adept at inducing individuals and agencies to act on her behalf with respect to financial assistance, housing, legal and other practical matters; as being impervious to feedback; as it being difficult for her to empathise with others or to accept any view but her own. Dr Quadrio says it appears that psychosis manifests itself at times of stress. She has no motivation to participate in treatment and no insight into the need for treatment… She does not identify a problem in terms of her own adjustment...I think she’s got insight into needing support. I’m not sure that she’s got insight into needing change.
Relevant factors under section 60CC
The child’s expressed views and the weight those views should be given
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Ms Cullen reports in January 2007[20] that Chloe expressed “a clear view that she does not want to spend any time” with her mother and that her views have been constant since June 2004. Chloe expressed a strong view that she wants to live with her father. Ms Cullen says “she is a very mature and intelligent girl, and she knows what she wants quite clearly…” Ms Cullen says Chloe showed some “quite high anxiety that the court would change her place of residence.”
[20] Page 7.
Ms Cullen reports in June 2004[21] that Chloe became angry and distressed when she talked about her mother. “She stated she did not want to be locked up by her mother in her dark room and that her mother smacks her and hates her. She claimed that her mother pressed her with a hot plate and hit her with the vacuum cleaner cord and ‘it hurts’. She also stated that her mother had put a needle into the back of her hand. She claimed that her mother frequently would not allow her to attend school. She claimed that whenever she sees her mother she has bad dreams as she is frightened of her and then she runs to her father’s bed. She indicated that her dreams were of her mother killing her father and her saying ‘No, No. Chloe claimed she is terrified as her mother had threatened that she would kill her father and that she would never see him again.”
[21] Page 7.
Ms Cullen says Chloe is fearful that incidents which took place with her mother years ago, may occur again. Chloe could recall no happy times with her mother. When asked to remain in the room with Ms Cullen and the mother, Chloe “was absolutely adamant that she didn’t want to [meet her mother] and she said she wouldn’t stay in the room, and that she would be fearful.” In her report of 2007 Ms Cullen says:
The major concern that Chloe expressed was that her mother will lie in court and that the Judge will believe her and that she will be forced to live with her mother again.
In Ms Cullen’s opinion, Chloe’s views have not in any way been influenced by the father. She is in no doubt that Chloe has genuine memories of frightening experiences with her mother.
I accept Ms Cullen’s evidence that Chloe is frightened of her mother because of the trauma she experienced while in her mother’s care. I accept Ms Cullen’s view that Chloe is a mature and articulate child for her age who has expressed a clear and constant view over a 3 year period that she wants to live with her father. I accept that Chloe does not want to see her mother or have anything to do with her and cannot contemplate ever wanting to see her mother again
I give significant weight to this factor in reaching my decision.
The nature of the relationships between the child and each parent and the child and other persons
In her report of June 2004 Ms Cullen observed the father to have a “warm, trusting and loving relationship with Chloe which was fully reciprocated by Chloe.” Chloe told Ms Cullen that her father “gives her lots of cuddles and kisses and they play monopoly and go on picnics with other friends.” In his report of October 2004, Mr David Davis, Family Therapist observed a great deal of affection and care in the relationship between Chloe and her father[22]. In her 2007 report, Ms Cullen says that Chloe:
was observed to have a close relationship with her father and claimed that if she feels sad she goes to her father, who is understanding, and he gives her a big hug which makes her feel better.
[22] Annexure I to the father’s affidavit.
The mother herself acknowledged to an officer at the Department of Community Services[23] that Chloe and the father “love each other” and “Chloe always wants to be with her dad.”
[23] Exhibit 4.
In Ms Cullen’s view in 2004, Chloe does not feel secure and safe in the mother’s presence. In Ms Cullen’s view, Chloe’s emotional reaction is consistent with her relating her own experiences, and not repeating something someone else has said to her. I accept Ms Cullen’s evidence.
Dr Quadrio questions the security of the bond between Chloe and the mother when Chloe lived with the mother. Dr Quadrio, whose evidence I accept, says:
I think there’s more than simply the disclosures of abuse that raise questions about the bond because up until the removal the child had only been having contact with her father one day a week and then she – as far as I know – had almost no contact with him for the first 3 or 4 years of her life…yet she seems to have been very keen to leave her mother and she seems to have done very well in the father’s care…I wouldn’t have expected a child of that age to be able to maintain that position if her underlying relationship with her mother was a sound and secure one. I would’ve expected that a child of that age would soon begin to desperately miss the parent that she’s been removed from and that that would be apparent at the school or apparent in some other way.
There is no evidence before me as to Chloe’s relationships with others. The father says he has a big family in Iran, none of whom have met Chloe, though she speaks to members of his family on the phone and he would like the opportunity to take her to Iran for a holiday. The father says he has tried to locate the mother’s mother for Chloe so far without success.
I give my findings under this factor significant weight.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
The mother seeks an order that Chloe not spend any time with the father and the father seeks an order that Chloe not spend any time with the mother. There is an apprehended violence order in force for the protection of the father against the mother. Ms Cullen says in her first report:
There was no joint interview arranged between the parents because of the past circumstances. The parents have never cohabited and the AVO against Ms Palmer underlines the continuing nature of this dysfunctional relationship.
In Dr Quadrio’s view[24], the mother would be unwilling to facilitate the relationship between Chloe and the father although she concedes that the mother did make Chloe available to spend time with the father prior to Chloe being removed from her care. Dr Quadrio says the mother’s feelings towards the father have since changed for the worse. She now has a “hostile and paranoid attitude towards him and this includes a propensity to behave in a threatening and intimidating manner.”[25]
[24] Page 55 of her report.
[25] Page 55 of her report.
The father says that he will encourage Chloe to spend time with the mother if he is satisfied the mother is well. He says “I would love my daughter to have an ordinary relationship with her mum”. He says he will certainly facilitate Chloe spending time with the mother if, in the future, Chloe expresses any wish to do so.
In the circumstances of this case, whatever orders may be made, I am not satisfied either party would facilitate the relationship with the other party at this time. I accept the father’s evidence that he will help Chloe re-establish a relationship with her mother should Chloe wish for that to happen. However, I do not regard this factor as significant in the circumstances of this case.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent
On the basis of Dr Quadrio’s evidence, to which I have earlier referred, I am not satisfied the mother has the capacity to provide for Chloe’s emotional and intellectual needs and is limited in capacity “to re-establish an appropriate relationship with” Chloe[26]. I accept Dr Quadrio’s view that her personality disturbance makes it almost I impossible for her to be sensitive to or to empathise with the feelings and needs of others, most particularly her children. The mother demonstrates no insight into her own personality disorder and the impact her condition has had on Chloe or anyone else.
[26] Page 54 of her report.
I take into account that in 2004, her then treating psychiatrist Dr Babidge reported that the mother was well enough to spend time with Chloe provided she remain under a Community Treatment Order and the visits were monitored by the Department of Community Services. However, according to the notes from Hornsby Kur-ring-gai Mental Health Service[27] the mother avoided the Community Treatment Order by leaving the country in mid-2004.
[27] Exhibit 3.
The mother is currently receiving no treatment for a mental disorder. Dr Quadrio says the therapy the mother is presently having is only supportive therapy, not psychotherapy treatment for personality disorder. Dr Quadrio says in oral evidence that psychotherapy could possibly ameliorate the mother’s personality disturbance but only if she were motivated to have treatment and only if she accepted she needed treatment. She says the mother doesn’t seem to have any insight into the fact that there’s been any problem with her behaviour at all and has shown no motivation to a programme of change. If the mother were to demonstrate an insight and motivation to embark on psychotherapy, in Dr Quadrio’s view, it would require 2 or 3 years of therapy before there would be any amelioration in her situation. Dr Quadrio doubts the mother will gain the necessary insight to embark on treatment.
I accept the submissions of the Independent Children’s Lawyer that the father does have capacity to provide for Chloe’s needs. Mr Hearl describes the father as “an old-fashioned father” who provides Chloe with stability and certainty. In her report of June 2004, Ms Cullen perceived the father to be a responsible, stable man who expressed regret that he had no contact with Chloe in her early years. Ms Cullen said the father was making an effort to ensure Chloe spends time with mothers of her friends so she has contact with adult women which may be important as she approaches puberty.
In cross-examination, Dr Quadrio acknowledges facts which cause her some concern about the father’s capacity to parent Chloe, including the fact he has a dispute with his brother which includes an apprehended violence order against him, and the fact he did not see Chloe until she was 3 or 4 years of age.
In her report of January 2007, Ms Cullen observed the father seemed “more anxious and angry about the situation than in 2004…He alleged that Ms Palmer’s constant harassment makes him agitated and anxious and therefore affects his parenting of Chloe. He claimed that, without aggravation from (the mother), their life is calmer and better for Chloe.” I accept that the father has at times struggled emotionally in the face of the mother’s provocation, particularly given his need to protect Chloe and keep her feeling safe.
I was impressed by the father as devoted to Chloe and committed to her welfare. Although being absent in her early years, the father took full responsibility for Chloe’s care when he became aware of her suffering while living with the mother. I was impressed by the father’s attitude to Chloe’s religious upbringing. Despite himself being a practising Muslim, he is not attempting to influence Chloe to follow any particular religion, leaving this decision to her when she is older. I am satisfied the father’s life now revolves around Chloe’s needs and that he provides Chloe with a strong and consistent physical and emotional base.
I give this factor considerable weight.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
The father acknowledges his absence from Chloe’s life until she was
3-4 years of age when he started to spend regular time with her. I accept his evidence that he was unable to relate to the mother and chose to keep his distance for his own purposes. While I am critical of the father’s attitude to Chloe during this period, particularly as the father had some knowledge of the mother’s disturbing behaviour towards her first child, John, I accept his evidence that he believed Chloe needed her mother more than her father during this period.
As already noted, I find the father has fulfilled his parental responsibilities in an exemplary way since he took over Chloe’s full time care in June 2003. I find the father has supported Chloe financially, emotionally and intellectually since then, in the face of distressing and undermining conduct on the part of the mother towards both him and Chloe. I accept the father’s evidence that he does not denigrate the mother to Chloe and has explained the mother’s behaviour towards Chloe results from her illness. I take into account that the father complied with an order of June 2004 to take Chloe to counselling and that the father readily consented to an order in May this year when the hearing concluded, to ensure Chloe participates in a course for children of mentally ill parents, as recommended by Dr Quadrio.
I am not satisfied the mother has fulfilled her parental responsibilities because of her complex psychiatric condition already referred to.
I take this factor into account.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
Ms Cullen says that if the court made orders in terms of the mother’s application, that Chloe live with the mother and not see the father at all, she “would be emotionally devastated with not having any contact with her father, because she has a very close relationship with her father and a very great trust.” Ms Cullen says “I think it would be very hard to force her to actually go in that situation…I couldn’t think of the consequences if the order was made. I think it would be a very difficult situation.” In Ms Cullen’s view, Chloe becomes distressed and has nightmares when her mother attempts any contact with her, because she is so scared her mother will take her. In Ms Cullen’s view, Chloe will only be settled when she has no contact of any kind with her mother and is allowed to get on with her life with her father.
I find the mother shows no insight into what it would mean for Chloe were Chloe to be separated from her father. The mother says Chloe would have no problems adjusting. She believes Chloe has been trying to make contact with her, and return to her for a long time.
I give significant weight to the likely negative impact on Chloe of any change in her present circumstances.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
The mother alleges that the father was violent towards her during contact changeover when Chloe lived with her, but adduces no evidence of any specific incident. The mother alleges when she first met the father, he forced her to have sexual relations with him, but then says she saw him every night for several months. I find the mother’s evidence unreliable and give it minimal weight.
In May 1997 the father obtained a final apprehended violence order against the mother for a period of 12 months prohibiting the mother from approaching the father or within 500 metres of the father’s home or contacting his premises by telephone or any means[28]. On 8 June 2004 an apprehended violence order was made against the mother for 12 months for the protection of the father and Chloe. On 8 September 2006 the father obtained a further apprehended violence order against the mother for 3 years for his protection prohibiting the mother from making any contact with him, or from sending SMS messages.
[28] Exhibit 6.
I take these matters into account.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable
Dr Quadrio says[29]:
It is probable that keeping alive any indication that future proceedings may be successful will only maintain and reinforce Ms Palmer’s behaviour. Any concession to her current position may only (serve) to reinforce her sense of entitlement rather than appease her and may encourage her to press harder for more access.
[29] At page 58 of her report.
Regrettably, I am not satisfied there are any orders the court can make which would minimise the risk of further court proceedings. I therefore do not take this factor into account.
The benefit to the child of having a meaningful relationship with both the child’s parents
I have earlier made findings about the nature of Chloe’s relationship with each of her parents. There is no dispute that Chloe has a close and loving relationship with the father. On the basis of Dr Quadrio’s evidence, earlier referred to, I am satisfied Chloe has never developed a secure and safe attachment to her mother and remains frightened of her mother after a separation from her of over 4 years. I accept Dr Quadrio’s view that if Chloe is frightened of the mother, to force her to spend time with her, may be abusive. In Dr Quadrio’s view, the mother has a limited capacity to re-establish an appropriate relationship with the child because of that personality disorder[30].
[30] At page 54 of her report.
I have formed the view on the basis of the evidence of Ms Cullen and Dr Quadrio that it is not possible for Chloe to have any kind of relationship with the mother without causing Chloe emotional and psychological harm. I am satisfied, that if there is any chance of Chloe developing a meaningful relationship, the mother must accept she has a psychiatric disorder, must undergo long term psychotherapy, and Chloe must be willing to spend time with her mother.
This is a primary factor to which I must have particular regard, and I give it substantial weight.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
Chloe has bad memories of life with her mother. I accept the father’s evidence that Chloe had nightmares in the early months of living with him and that even now, she becomes anxious and distressed if her mother approaches her or attempts to make any contact with her. Ms Cullen says in evidence:
“the alleged incidents that she described have such force for her at the moment that she has suppressed some of those happy memories…” “those incidents were so upsetting for her and also stopped her trust in her relationship with her mother that she became very angry about everything.”
Dr Quadrio says “if Chloe’s attitude is based on her actual experience as she is reporting it, then it is understandable that she wants no contact and it would be damaging to her really to have other people attempting to persuade her otherwise if she is saying that she has been abused in the past and doesn’t want to be exposed to that again then I think we have a responsibility, really, to protect the child.”… “I don’t think we can compel a child who is in fear.”
As already noted, Ms Cullen has no hesitation in accepting Chloe’s feelings about her mother as genuine as a result of her direct experiences. I accept Dr Quadrio’s view that the mother has no insight into this at all. I accept the opinions of Ms Cullen and Dr Quadrio that to force Chloe to spend time with the mother, given her experience of her and current fear of her, may amount to emotional abuse. I give this matter substantial weight.
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but by s.61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
I am satisfied the mother has been abusive towards Chloe as a result of her mental state. I am satisfied the mother lacks insight into Chloe’s needs and lacks the capacity to effectively consult and communicate about decisions which will affect Chloe. The current apprehended violence order prohibits the mother from approaching or contacting the father. In these circumstances, I accept Ms Cullen’s view that it is not in Chloe’s best interests for the parties to share parental responsibility, nor is it realistic for them to be ordered to do so. I am satisfied the only practical course is for the father to have sole parental responsibility for decisions concerning Chloe.
Given I find the presumption of equal shared parental responsibility does not apply in this case, I am not required to consider whether Chloe should spend equal or substantial time with each parent.
Conclusion
Chloe remains fearful of the mother although she has not spent any time with her for 4 years. Chloe is mature for her age and articulate and according to Ms Cullen cannot, at this stage, contemplate spending time with her mother in the future. I accept the evidence of Ms Cullen that Chloe has no current attachment to the mother. Dr Quadrio says if the child has had a fundamentally good attachment to her mother in the years before she was removed from her then there may be some basis on which to work but if the fundamental relationship with them has never been secure it may be difficult. Although Dr Quadrio did not assess Chloe herself, on the basis of the documents alone, Dr Quadrio concludes Chloe did not have a secure bond with her mother. Dr Quadrio says Chloe may be interested in knowing more about her mother when she is about 13 or 14. In her view, she should be given an opportunity to meet her mother if she expresses an interest in knowing more. In Ms Cullen’s view, if there were to be an order for Chloe to spend time with the mother, there would need to have to be a long period of counselling for Chloe in light of her attitude to seeing her mother, which has not changed from mid 2004 until the present. She also says the mother would have to acknowledge her illness/condition and acknowledge the abuse and accept some responsibility and regret for the inappropriateness of her parenting before Chloe could learn to have any trust in her.
Dr Quadrio says if the mother were willing and motivated, there “could be some amelioration of her personality difficulties.” In her view, if there was sufficient change in her personality style, then it might become possible for her to spend some time with Chloe. Dr Quadrio says any contact between the mother and the child would have to benefit the child. It should not be a motivator for the mother’s treatment…”What’s of benefit to the child is to feel secure and safe.” In her view, the counselling might best be delayed until Chloe is older when she has some understanding of the circumstances of her relationship with her mother.
The mother asks for Chloe to live with her and did not change her position after the release of Ms Cullen’s second report or Dr Quadrio’s report. Despite the clarity and compelling nature of their evidence, the mother remained fixed in her view that Chloe wants to live with her and the father has caused Chloe to turn against her. The mother believes that because Chloe was in her care for nearly 7 years, that living arrangement must be reinstated, irrespective of the nature of Chloe’s relationship with her. I find the mother is unable to appreciate any other view than her own. I accept Dr Quadrio’s statement[31]:
…it is my view that the Court would not be assisted by further diagnostic precision – what is more important is the pattern of behaviour, its consistency over time and is amenability to change – and about this there can be little argument…it is highly unlikely that there will be any alternation to this pattern and it has been resistant to psychiatric intervention.
[31] At page 59 of her report.
Although not instructed to amend the orders the mother was seeking, the mother’s counsel submits that Chloe would be advantaged by an order requiring her to at least meet with the mother or communicate with her in some way. Ms Cullen says any order for Chloe to spend time would almost certainly be impossible to implement and may amount to emotional abuse. I find the only basis for the mother’s counsel’s submission is the mother’s needs. I have concluded that if I were to order Chloe to spend time with or communicate with her mother, it would not be in Chloe’s best interests. I do not expect the mother to readily accept the orders I have made or to seek to understand the Reasons for the Orders.
In Ms Cullen’s view Chloe is now “a very happy really balanced little girl”. She was observed to have well-developed social skills and is performing in the top level of her class at school. I am satisfied Chloe is living in a settled household with her father and is enjoying life. The father hopes to take Chloe to meet her relatives in Iran and I have made an order to enable him to do so. The father wants Chloe to be educated and fulfilled and to feel safe. I am satisfied the father will listen to Chloe and facilitate contact between Chloe and her mother should Chloe express an interest to do so.
When the hearing was finalised on 22 May 2007, with the consent of all parties, I ordered the Independent Children’s Lawyer to forward a copy of Dr Quadrio’s report to Dr Henson at the Metta Clinic, Pymble. I also ordered the father to enrol Chloe in a course run by the NSW Health Department for Children of Parents with a Mental Illness (COPMI) and to ensure Chloe participates in the course.
I am satisfied that the Orders set out at the commencement of these Reasons are in the best interests of Chloe.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 16 August 2007
0
0
1