plaintiff. The father was granted sole parental responsibility and the child was ordered to live with him; the mother was granted graduated unsupervised time, subject to psychiatric reporting and other...
Key principles
On the evidence in this case, the child’s best interests were served by living with the father, who the Court found offered greater stability and a more consistent capacity to...
The mother’s identified risks did not require the complete cessation of physical time or continuing supervision. A slower graduated transition to unsupervised time, alongside...
The presumption of equal shared parental responsibility was rebutted on the evidence because communication between the parents was ineffective, the Court lacked confidence in...
Issues before the court
Where should the child live, and what time should the child spend with each parent?
Did the evidence rebut the presumption of equal shared parental responsibility?
How should the Court address the mother’s mental health and alcohol-related risks?
Should the child have no physical time with the mother, as the Independent Children’s Lawyer proposed?
Plain English Summary
The Court decided that X should continue living with her father because it considered his care more stable and had concerns about the mother’s mental health and alcohol use. It did not accept the Independent Children’s Lawyer’s proposal that the mother have no physical time with X. Instead, it ordered a gradual increase in the mother’s unsupervised time, with psychiatric reporting and other safeguards. The father received sole parental responsibility because the Court found that the parents could not reliably make major decisions together and that the mother’s circumstances created relevant risks.
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Cited legislation
2 cited instruments linked from this judgment.
Deep Dive
2,087 words · generated 28/09/2026
What happened
Taro & Sanders [2020] FamCA 37 is a parenting decision delivered by Baumann J in the Family Court of Australia at Brisbane on 31 January 2020. The judgment concerns X, born in 2014. From birth, X lived with her mother, Ms Sanders. The father, Mr Taro, had limited and sporadic time with her until an interim order made on 7 December 2018 changed her residence to his care.
At the final hearing, the father sought that X continue living with him, that he have sole parental responsibility, and that the mother spend increasing periods of unsupervised time with X. The mother sought that X return to her primary care. The Independent Children’s Lawyer (ICL) proposed that X live with the father and have no physical time with the mother.
The central factual concerns were the mother’s mental health and use of alcohol. The Court considered psychiatric evidence from Dr D, who had conducted an earlier assessment, and Dr L, the mother’s treating psychiatrist. The Court accepted that the mother continued to suffer mental illness, although the condition was difficult to diagnose definitively. It also found she had a history of excessive alcohol use that could adversely affect her behaviour and parenting capacity. In particular, the Court did not accept her evidence that she had not been intoxicated since 2011. Its assessment drew on several accounts and records, including the 2017 Ekka incident, where the police material recorded a reading of .223 and aggressive behaviour.
The Court also considered the mother’s relationship with X, the child’s expressed wish to live with her mother, and evidence that the child’s relationship with her father had strengthened since the residence change. It found that the father offered greater stability and more consistent capacity to meet X’s needs, while recognising the importance of preserving the child’s relationship with her mother.
The final orders gave the father sole parental responsibility and required X to live with him. The mother’s time was to increase in stages: initially one day every second weekend for three months, then two days each alternate weekend for three months, followed by overnight time from Saturday to Sunday. The orders also provided for specified holiday and special-day arrangements. The mother was required to provide psychiatric letters every six months and to notify the father if she changed psychiatrist or stopped attending. She was restrained from consuming alcohol or illicit substances while caring for X.
The supplied judgment text has lost its original continuous paragraph numbering in parts. For that reason, the discussion below identifies the relevant sections by their headings and refers to quoted passages without assigning paragraph numbers that cannot be verified from the supplied copy.
Why the court decided this way
The Court’s reasoning involved two connected decisions: where X should live, and how her relationship with her mother could continue in a way that managed the risks the Court identified.
On residence, the Court considered that the father offered more certainty and security. It found that he had become a committed and loving parent since X moved into his care, with support from his family. The mother, by contrast, was found to be vulnerable to relapse into anti-social behaviour, aggression and irrationality, particularly if she drank excessively or did not maintain a close therapeutic relationship with a psychiatrist. The Court also expressed concern about the mother’s lack of acceptance and insight into her mental health and alcohol issues.
The Court did not treat the psychiatric evidence as conclusive in every respect. It considered the expert evidence alongside the mother’s history, the records and the evidence tested at trial. It accepted Dr L’s opinion that the mother might still be suffering from schizophrenia, and accepted that her self-reporting about alcohol was difficult to rely on. The Court regarded effective monitoring as important to the mother’s functioning. At the same time, it noted that the illness did not appear to manifest every day and that there was not evidence of constant attention from authorities.
On time, the Court rejected the ICL’s proposal that there be no physical contact. The judgment states that the mother’s risks were not sufficient to “prevent any time” or to require the continuation of supervised time. The Court considered the child’s wish to spend time with, and live with, her mother. It also recognised that the child’s primary relationship had been with her mother, although the Court found that X’s relationship with her father had developed and become warm and loving.
The Court’s approach was not to treat the relationship benefit as overriding risk. It expressly stated that the legislation required greater weight to be given to risks of harm than to the benefit of a meaningful relationship. It then assessed whether the identified risks could be managed without eliminating physical time. Its answer was that they could be balanced by keeping X primarily in the father’s care, increasing the mother’s time gradually, requiring ongoing psychiatric treatment and reporting, and allowing the father to monitor X’s behaviour and comments.
The Court also found that shared decision-making was not appropriate at that time. It referred to ineffective communication and a lack of sufficient respect and trust for meaningful discussion of major long-term decisions. It considered the mother’s risks relevant to her ability to make parental decisions. The resulting order gave the father sole parental responsibility.
Before and after state of the law
The judgment did not purport to establish a new general rule about mental illness, alcohol use, or parenting arrangements. Its conclusions were applications of the statutory framework to the evidence in this case.
In its “Statutory pathway” discussion, the Court identified ss 60B and 60CC of the Family Law Act 1975 (Cth) as relevant to the child’s best interests. It stated that the Court should, to the extent possible, ensure that orders do not expose a party or child to unacceptable risk of harm. It also stated that risk of harm must receive greater weight than the benefit of a meaningful relationship, referring to ss 60CC(2)(a) and (b).
The judgment separately addressed the presumption of equal shared parental responsibility in s 61DA. Relying on Goode & Goode (2006) FLC 93-286, it explained that equal shared parental responsibility does not itself create a presumption about the amount of time a child should spend with each parent. It referred to s 65DAA for the separate statutory consideration of equal time and, if that is not appropriate or practicable, substantial and significant time.
For parental responsibility, the Court cited Vallans & Vallans [2019] FamCAFC 260, noting that the presumption may be rebutted under s 61DA(4) by evidence establishing that equal shared parental responsibility would not be in the child’s best interests. The Court found that the father had discharged that onus on the facts before it.
The judgment therefore illustrates the separate analysis of decision-making responsibility and a child’s time with each parent. Sole parental responsibility for the father did not lead the Court to order that the mother have no physical time. The orders instead combined sole responsibility, residence with the father, graduated time with the mother and safeguards related to the particular risks found.
Key passages with plain-English translation
The Court stated: “Greater weight to the risks of harm (s 60CC(2)(b)) than to the benefit to a child of having a meaningful relationship with a parent (s 60CC(2)(a)) is required by clear legislative mandate.”
In plain English, the Court regarded safety and risk as more important in the statutory balance than the benefit of a relationship. That did not mean that risk automatically required the child to have no contact with a parent. The Court still had to assess the nature and extent of the risk and the arrangements available to manage it.
The Court concluded that the mother’s risks were not enough “to prevent any time; or even to maintain supervised time.” In plain English, the Court considered the mother’s risks real, but not so severe that X should be prevented from seeing her or that all visits needed to remain supervised. The orders’ staged timetable reflected that case-specific assessment.
The judgment also described the father as offering “more certainty and security for X”. This was an evaluative finding based on the evidence about the parents’ circumstances, the father’s care of X since December 2018, and the support available to him. It should not be read as a general rule that one type of household or family support is always preferable.
The Court’s suggestion that weekend time might later extend from Friday after school to Monday before school was expressly “not to be construed as an order”. In plain English, this was guidance about a possible future arrangement if transport concerns were resolved and the existing graduated time worked well. It was not part of the binding timetable ordered by the Court.
What fact patterns trigger this precedent
The decision may be relevant to legal analysis where parenting proceedings involve evidence of a parent’s mental health concerns or alcohol use, and the court must assess how those matters affect parenting capacity and the child’s safety. It is particularly relevant to situations where the evidence includes expert psychiatric opinions, a parent’s treatment history, conflicting accounts of alcohol use, or incidents said to show impaired behaviour while caring for a child.
It may also be relevant where the court is asked to choose between no physical time, supervised time and graduated unsupervised time. The judgment shows that the Court considered those as distinct options rather than assuming that a finding of risk required the most restrictive arrangement. The order in this case coupled increased time with the child remaining primarily in the other parent’s care and with psychiatric reporting requirements.
The case also addresses proceedings where one parent’s communication with the other is poor and there are concerns about joint decision-making. It demonstrates, on its facts, that a finding against equal shared parental responsibility need not decide the separate question of the child’s time with each parent.
The decision does not establish that any diagnosis, history of treatment, alcohol-related incident or disagreement between parents will produce the same result. The Court’s findings depended on the particular evidence, including the expert testimony, the mother’s account, the observed history, the child’s circumstances and the father’s proposal.
How later courts have treated it
The supplied judgment does not identify any later court decisions that considered or applied Taro & Sanders [2020] FamCA 37. It would therefore be unsafe, based only on this material, to describe how later courts have treated the decision or whether they have followed, distinguished or limited it.
The judgment itself refers to three authorities. It cites Goode & Goode (2006) FLC 93-286 for the distinction between equal shared parental responsibility and the question of time. It cites Vallans & Vallans [2019] FamCAFC 260 in its discussion of rebutting the presumption of equal shared parental responsibility. It also refers to the earlier interim decision in Taro & Sanders [2018] FamCA 1103, which had changed X’s residence to the father. Those references show the authorities and procedural history used by Baumann J, not how later courts treated the 2020 judgment.
Still-open questions
The judgment does not determine how the arrangements worked after the orders were made. It therefore provides no finding about whether the mother maintained psychiatric treatment, whether the reporting requirements were complied with, or how X responded to the graduated unsupervised time.
The Court identified practical concerns about transport and changeovers but did not resolve all of them. It expressed concern about the mother’s ability to manage school-day travel and suggested that a longer Friday-to-Monday arrangement might be considered if transport concerns were met. The judgment does not establish whether those circumstances later changed.
The Court also recognised uncertainty about the mother’s support network, including the status of her relationship with her adult daughter, and noted that the maternal grandmother had died. The material supplied does not show whether additional support became available or whether it affected parenting arrangements.
Finally, the judgment does not provide a general threshold for when mental health or alcohol-related risks justify supervised time, no time, or a staged move to unsupervised time. Its reasoning is fact-specific. Any application to another situation would require attention to the evidence in that matter, the current statutory provisions and any later authorities not included in the supplied material.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
FAMILY LAW - CHILDREN - assessment of risk as to the mother's mental health issues and alcohol use - where the Court finds it is in the best interests of the child to remain living in the primary care of the father and spend graduated unsupervised time with the mother.
(1) That the father have sole parental responsibility for the child, X, born ...2014 ("the child").
(2) That the child live with the father.
(3) That the mother provide to the father by email by a date no later than 30 March 2020 and thereafter every six (6) months, a letter from her treating Psychiatrist that:
(a) confirms the mother's continued attendance upon her treating Psychiatrist at such treatment intervals as recommended by her treating Psychiatrist; and
(b) confirms that the mother has complied with all recommendations of her treating Psychiatrist including the taking of any medication that may be prescribed by the treating Psychiatrist.
(4) That the mother shall advise the father in writing within seven (7) days of any decision she makes to change her treating Psychiatrist or cease attendance and consultation with her Psychiatrist.
(5) That the mother shall spend time with the child as agreed in writing between the parents but at least as follows:
(a) For a period of three (3) months from the date of these Orders, every second weekend from 9.00am to 4.00pm Saturday;
(b) Following the expiration of the period provided for in Order 5(a) herein, then for a further three (3) month period every second weekend from 9.00am to 4.00pm Saturday and 9.00am to 4.00pm Sunday;
(c) Thereafter, every second weekend from 9.00am Saturday to 4.00pm Sunday;
(d) Commencing in 2021, during the gazetted Queensland Easter, June/July and September/October school holidays, as follows:
(i) For one (1) week from after school on the last day of the school term until 9.00am on that day in the following week.
(e) Commencing in the Christmas school holidays in 2021, and in each Christmas school holiday thereafter, as follows:
(i) In odd-numbered years on a week about basis, with the mother to have the first week of the Christmas school holiday period; and
(ii) In even-numbered years, on a week about basis, with the mother to have the second week of the school holiday period; and
[8]
(19) That neither parent shall denigrate, assault, harass or intimidate the other parent to or in the presence of the child and shall do all such things as to ensure any third party associated with them does not denigrate, assault, harass or intimidate the other parent and in the event that such behaviour occurs, the parent shall take all reasonable steps to remove the child from the presence of that third party.
(20) That both parents will not involve the child in adult issues as between the parents.
(21) That both parents be permitted to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
(22) That each parent is at liberty to attend at the child's school for the purposes of any function or activity normally attended by parents subject to the policies/requirements of the child's school.
(23) That these Orders act as an authority to any health care professional, educational facility or extra-curricular activity provider upon whom the child attends to provide all information, and documents with regards to the child to each parent at the cost of the requesting parent. The parents shall keep each other informed of the names and addresses of any treating medical or other health practitioner who treats the child.
(24) That the parents shall keep the other parent informed of:
(a) their residential address and email address;
(b) their mobile phone number;
(c) another emergency telephone number,
[9]
and shall advise the other parent of any changes within seven (7) days of such change.
[10]
(25) That each parent shall inform the other parent of any serious injury or illness to the child, whilst the child is in their care.
(26) That the Independent Children's Lawyer shall be permitted to provide the mother's treating Psychiatrist Dr L with a copy of the Reasons for Judgment delivered 31 January 2020 and after doing so, is discharged.
[11]
Note: The form of the order is subject to the entry of the order in the Court's records.
[12]
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taro & Sanders has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
[13]
Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
[14]
Since her birth in 2014, X has lived with her mother, Ms Sanders, and had limited and sporadic time with her biological father, Mr Taro, until an interim decision of the Court made 7 December 2018 effected an immediate change of residence to the father.
At that time and as an enduring issue at the hearing which commenced on 16 September 2019, was concerns about the mother's mental health and her use of alcohol. As more fully detailed, in the final submissions, the Applicant father says the child should remain living with him, whilst the mother seeks a return of the child to her primary care.
The Independent Children's Lawyer ("ICL") contends that the child should live with the father and she should spend no physical time with the mother. The polarised nature of the positions is stark and the complexities in the case only slightly eased when the mother, who had for the proceedings been unrepresented, was able to secure Legal Aid which allowed her case to be properly presented, with experienced Counsel Mr Baston appearing at the hearing for the mother. Together with Counsel for the father Mr Ehlers and Counsel for the ICL Ms Wardle, the evidence was properly tested and explored.
[15]
The father's minute of orders is attached and marked Appendix One, and essentially provides for X to live with him; for the father to have an order for sole parental responsibility; for X to spend time unsupervised with the mother each alternate weekend graduating to alternate weekends from Friday to Monday and equal unsupervised school holidays. The father requires the mother to maintain a therapeutic relationship with her treating Psychiatrist and provide reports every six months to the father (see order 3). The father seeks an order for the child to attend N School.
The mother's case outline filed 19 June 2019 (and relied upon after the earlier trial had to be adjourned following the sad passing of the maternal grandmother the night before the hearing was to commence), contained a number of scenarios:
[16]
One: the child should live with the mother who would have sole parental responsibility; the father's time was to be supervised indefinitely. Mr Baston for the mother conceded early in the final hearing that the mother does not now assert the father is an unacceptable risk to X, and therefore scenario one was of little relevance;
2. Two: where the father was not an unacceptable risk, then the mother's position (see order 14) curiously began with a temporary relocation to Asia for no more than three and a half years and upon the mother's return the child would spend time with the father each alternate weekend and half of the school holidays. As the mother no longer, at the hearing, sought to relocate, scenario two was of little relevance;
[17]
Three: this scenario became the mother's ultimate primary proposal, with the child living with her and the mother having sole parental responsibility, and the father was to spend each alternate weekend and half of the school holidays and special occasions;
[18]
Four: ultimately this scenario had little relevance, framed on a basis that "if the Court finds that the mother poses an unacceptable risk of harm to the child and the maternal family are suitable supervisors" - because the mother produced no evidence as to who the "maternal family supervisors" would be. I note, of course, that the case outline was prepared and filed before her mother's death;
2. Five: this scenario is framed "if the Court finds the mother poses an unacceptable risk of harm to the child and the maternal family are not suitable supervisors" - and in this context, is essentially a competing proposal to the ICL's proposed order for the child to spend no physical time with the mother. The mother's proposal is for the parents to have equal shared parental responsibility and for contact to occur at K Group "until such time as the mother provides the father with evidence from her treating psychiatrist that her mental health is being adequately managed and she does not pose a risk to the child". Such a "condition" is problematic in that the Court might be seen as abdicating their judicial function to assess risk to an unnamed medical professional, however that was her position.
The ICL, as mentioned, takes the view that the mother is such an unacceptable risk to X, that no physical time should be ordered.
Appendix Two to these Reasons is the ICL's formal and final proposal.
[19]
In all cases involving parenting orders, the child's best interests are the Court's paramount consideration. In determining those interests the Court must consider not only the objects of Section 60B of the Family Law Act1975 ("the Act") and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child's best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and .
[20]
The history which follows provides a context for the matter without dealing with a number of events which are best referred to when dealing with the seminal issue of risk - either as to the mother's alcohol use or the issues that arise from the concerns raised about her mental health. Statements of fact hereafter shall be construed as findings of fact.
The mother was born in 1975 and the father was born in 1976. I accept, as the mother asserts, that she was a "ward of the State" from the age of 14 years and had suffered sexual abuse at the hands of a male relative.
In 1992 the mother was sentenced to four years imprisonment for robbery and grievous bodily harm offences and whilst in prison, gave birth to her daughter Ms B in late 1993. Despite the mother's release from incarceration the mother continued to offend but says her last recorded criminal charge was in 2004 - she being 29 years of age at that time.
The mother's first recorded mental health event was in 2011 and, although the mother disputes the diagnosis, the records reveal at least some preliminary diagnosis of schizophrenia at that time.
The parents met online in 2012, but did not physically interact until 2013 and it was a casual relationship with sexual intimacy. The parents did not appear to be in a committed relationship and although when pregnant with X the parties did spend some time together, I am not satisfied they lived together in a genuine domestic relationship. There was no doubt that Mr Taro was the biological father of the unborn child and he attended an obstetric check-up with the mother in July 2014, when he did raise concerns about the mother's use of alcohol and smoking. In 2014 X was born nine weeks premature and weighing just 1.28 kilograms at the DD Hospital, with the father being present.
The child remained in hospital until she was seven weeks of age in 2014, and remained in her mother's care. The confusing and at times conflictual relationship between the mother and the father continued - with the mother making allegations that the father was stalking her; was threatening and harassing and subjected her to psychological and financial abuse (by withholding child support). All these broad allegations were denied by the father, and in circumstances where the mother (through her Counsel) made it clear the mother did not assert that the father is an unacceptable risk to the child, the father was not cross-examined about these broad earlier allegations.
[21]
"I believe the Family report by Ms C is extremely important in this case in terms of observations [emphasis added] of X with both her Mother and Father particularly Ms Sanders' current attitudes, outlook and cooperation with regard to the current matters before the court."
[22]
In this context, the mother's refusal to permit the child X to participate in observations with the father, Ms C properly noted, means "my assessment is limited as a result".
As a result of this less than satisfactory process, when the matter first came before me in a duty list on 7 December 2018, I arranged for Ms C to observe X on 7 December 2018, and Ms C gave further oral evidence at 2.12pm that day. The full family report; the oral evidence of Ms C and the reports of Dr D (actually filed on 30 November 2018), were before me.
For reasons delivered orally, the Court made Orders that X reside with the father immediately (see Taro & Sanders[2018] FamCA 1103), and subsequently on 20 December 2018, Orders for X to spend supervised time with the mother were made - and began and have continued at K Group on the Region HH.
The mother, by a number of Applications in a Case sought that the Court make orders to return X to her and seeking other relief; she, as she was entitled to do, appealed the Orders, but because of the proximity of a final hearing scheduled to commence on 24 June 2019, the Full Court did not deal with the merits of the Appeal.
Sadly however, the mother who at all times was unrepresented, lost her mother the night before the first trial was due to commence. The trial had to be adjourned. The trial then proceeded on three days commencing 16 September 2019.
By the time of the final hearing, the child X had been living with the father since 7 December 2018. The mother had been spending regular supervised time - as the reports of Ms Q attached to her Affidavit filed 24 June 2019 and 12 September 2019 confirms. Ms Q was the subject of brief cross-examination.
Before I deal with the competing proposals earlier identified in these Reasons, within the matrix of the relevant s 60CC(2) and s 60CC(3) considerations, because so much of this case turns upon findings required about the mother's behaviour; use of alcohol and her mental health, I deal with some of these issues discretely in these Reasons.
[23]
The initial assessment by Dr D was critical to the decision of the Court, on an interim basis, to immediately move the child from the primary care of the mother (where she had always lived) into the primary care of the father who as at December 2018 had spent limited time with X.
Conscious of the gravity of that decision and the Court's reliance on the expert (yet untested) opinions of both Dr D and the Family Consultant Ms C, every attempt was made to encourage the mother to urgently engage with a treating health professional, including a treating Psychiatrist, and to produce evidence to the Court to challenge the opinions of at least Dr D.
I accept that the mother probably did her best to obtain such treatment and evidence, however she found it difficult at times to navigate the processes and was more intent on "reversing" the orders for change of residence, than accepting she needed to obtain some evidence. This was, as the Court sought to explain to the mother repeatedly, also critical to meet the assertion by Dr D, that the mother's diagnosis of schizophrenia was not being managed.
Thankfully, by the time of the hearing in September 2019, the mother was able to offer evidence from her treating Psychiatrist Dr L (see Exhibit 2) being reports dated 7 June 2019 and 2 August 2019. The mother also exhibited to her trial Affidavits (No.-08; No.-09) letters from Dr L, which simply confirmed the inability, at that time, to provide a medico-legal report because of the mother's failure to maintain some appointments for clinical assessment.
In any event, at the trial, I had evidence tested by cross-examination from both Dr L as well as Dr D (who had been updated with new material) before he was cross-examined, and I make findings about that evidence below. In doing so, some of the history touching directly on the mother's mental health was confirmed by documents tendered and, I find, is accurate, namely:
The mother indicated to Dr D that she "was also admitted to the A clinic in New Zealand in 2001 with a diagnosis of paranoid schizophrenia, where she remained in hospital for approximately four months". No corroboration of this admission or diagnosis at that time was offered to the Court;
In 2011 (when the mother was approximately 35 years of age), the mother came to the attention to Police because of reports by her flatmates about her . A case summary prepared by Dr T on 14 March 2011 (Exhibit 10) refers to the mother, during a mental state examination ("MSE"), having:
[24]
"...a number of delusions that were persecutory in nature, grandiose as well as somatic. She was very irritable, resisted being assessed in the Emergency Department, demanded to be released from hospital, insisting she had to return to her antiterrorism class."
[25]
She expressed to admitting staff "ideas about government agencies plotting against her and that she, as an anti-terrorist expert, needed to address all these issues."
[26]
The note described as "consumer intake" (Exhibit 9) records that when initially approached by Police, the mother was observed "drinking red wine, claiming her doctor told her it was good for her". This theme about the mother's use and need for alcohol is specifically dealt with later in these Reasons;
[27]
The MSE describes the number of delusions identified in subsequent interviews by medical staff of the mother and confirmed the mother's admission that she has "a history of Hepatitis C - contracted whilst sharing needles during incarceration in Brisbane";
The mother acknowledged having contact with mental health services "17 years ago" when her daughter Ms B was a baby, and claims she was assessed thoroughly and told she "did not have schizophrenia";
Although some of the records tendered refer to the mother being diagnosed with schizophrenia, either whilst in prison or subsequently, no actual confirmation of such a diagnosis at that time was available to the Court. It would be unlikely the mother would readily accept such a diagnosis was made - in fact she has in this case always denied that such a diagnosis has been made, and when Ms C sought to clarify the mother's version of the hospital admission in 2011, she did not obtain a clear account (see paragraph 71 of the family report). This is in contrast with the note of Ms C in the s 11F report of 6 July 2018 where the mother is recorded as stating "she was diagnosed with schizophrenia in 2011". The mother told Dr D "she remained in hospital for approximately two months and was placed on psychotropic and antidepressant medication and after discharge this medication was gradually weaned off, with her not having had any psychotropic or antidepressant medication now for the past seven years"
Exhibit 12 is a note by Dr U dated 23 January 2017 to the Department of Communities arising from a dispute with some co-tenants on 16 January 2017 which Police attended. Exhibit 13 is a Police record of the attendance, however although the tenants are recorded as informing authorities that the mother was "making false accusations against them, mother talking to this air and voicing suspicions of government agencies", no Police action was taken, and the evidence before this Court is insufficient to make any clear findings about the incident - including an allegation that the mother had assaulted X with a remote control about three times.
[28]
Although the father alleges other examples of concerning behaviour by the mother, all denied by the mother, the history recorded above sets the foundation initially for the initial cross-sectional examination by Dr D. I am satisfied that the mother remained largely untreated (by medication or effective therapy) for her mental health challenges from the time of her discharge from the outpatients clinic of Suburb J hospital in around September 2011, until her first appointment with Dr L on 22 January 2019. During 2019, and before the final hearing, Dr L saw the mother on nine occasions (see Exhibit 15), with there being a gap between 13 March 2019 and 17 June 2019. The concerns of Dr L about the mother's request for a medico-legal report (no doubt for the first scheduled hearing) are fully explained in Exhibit 16.
It therefore follows that the mother's treating psychiatrist Dr L, in expressing the opinions he does in the letters forming Exhibit 2, may not have taken a full history from the mother and necessarily relied upon her self report as to alcohol use. Dr L confirmed he had read the "expert reports" and "agreed" with them. Dr D was cross-examined after Dr L and was given details of his additional evidence.
Dr D expressed he was "extremely pleased" the mother is attending Dr L and would accept Dr L's "observations" of the mother.
In the final analyses I find, on this expert evidence, that:
[29]
Dr L's opinion, that from his "observations the mother may still be suffering from schizophrenia", should be accepted - considering the mother's history;
2. Although Dr L's initial assessment was that the mother would benefit from medication, the mother's strident refusal to take medication might not present a difficulty if the mother maintains a supportive ongoing therapeutic relationship with a treating Psychiatrist;
[30]
I agree with Dr L that the mother's self-reporting of minimal alcohol use (both past and probably present) is difficult to accept, and Dr L might well need to further explore the mother's use of alcohol with her. Dr D opined, and I agree, that the mother's fixed view about her liver functioning/condition and being amenable to use of alcohol is a concern. I refer to this issue below;
[31]
Although Dr D's clear opinion (relied upon for the interim hearing) that the mother was risk of harm to the child moderated in his cross-examination, my impression of his evidence overall is that the mother has over the years demonstrated anti-social traits and psychotic behaviour, and that effective monitoring of the mother was critical to her functioning. The mother's lack of acceptance and insight into these issues was a concern to Dr D and I share that concern.
[32]
I begin this discussion on this critical issue, and one which both Psychiatrists say is likely to impact on the mother's mental health, by recording the mothers evidence, consistently stated under oath, was that she has "not drunk to intoxication since 2011" and that she still feels (based she says on medical advice and clearly in the context of a Hepatitis C diagnosis), that it is okay for four standard drinks a day to be consumed "for good health". I record the history next which is the foundation for the Court not accepting the mother's self-reported use of alcohol and the impact it has on her.
Before doing so, I refer to Exhibit 1, a report by Dr V who is described as a "Specialist Sexual Health Physician", who was first consulted by the mother in August 2016 about her treatment for chronic Hepatitis C at a low viral load. After the treatment Dr V opined that although she has not undertaken an estimation of her hepatitis C virus sustained virological response, the chances of such testing "demonstrating successful elimination of the virus are very high."
Dr V further recorded that:
[33]
"Ms Sanders and I discussed alcohol consumption at her first consultation. I recommended that her alcohol intake should not exceed two standard drunks each day and she should have at least two alcohol free days each week. She initially described consuming four standard drinks per day, three days per week, and had ascribed therapeutic qualities (heat and therapeutic inflammation) to this via a complimentary health epistemology. We discussed that alcohol intake should be minimalised in the setting of hepatitis C infection and that alcohol consumption increased fibrosis. Ms Sanders accepted this information without dispute."
[34]
Whilst that may have been the mother's response to Dr V in August 2016, I am comfortably satisfied that the mother, at times, has drunk alcohol to excess and often when she has done so her behaviour has been both erratic, at times aggressive and a poor example to X. I regard her evidence in this regard as, at times, evasive; often vague and at times simply unbelievable (the Ekka incident being the clearest example). In making this finding, I record the following events from the evidence, using 2011 as the starting point, namely:
[35]
The father says starting in 2013, he observed the mother drinking to excess when they socialised - he claims this occurred once or twice a week. The father swore that the mother would drink red wine by filling an empty plastic bottle and drinking from it "as if it were water". The mother denies this allegation and there is no corroboration about it occurring at this time. Alone, this "he says/she says" assertions are not determinative;
2. Before the birth of X, the father gives examples of the excessive drinking of the mother that he observed (see paragraphs 12 to 18 of his trial Affidavit). The mother denied such excessive drinking however the father's allegations were maintained during cross-examination and, at the very least, support a funding (which I make) that the mother's claim she had not been intoxicated since 2011 should not be accepted;
[36]
The paternal grandmother, who was exposed to cross-examination and I regard as a truthful witness, says that in or around Christmas 2015 at a gathering at her daughter Ms W's home, she observed the mother drinking from a plastic bottle "that was an empty coke bottle." I accept this evidence;
[37]
After the premature birth of X, which I accept was a very stressful time for the mother, the father says, and I accept, that the mother (who was staying at the hospital almost full-time) continued to drink and demand he purchase alcohol for her (see paragraphs 21 and 22). The mother denies this claim;
2. At the beginning of September 2014 the father and the mother attended a funeral for one of the mother's relatives in Suburb Y. Even allowing for the fact that funerals are emotionally difficult occasions, the father's statements at paragraphs 26 to 28 of his trial Affidavit were not effectively challenged in cross-examination and I accept his evidence of the mother's excessive drinking and how it had an adverse impact on her;
3. In a birthday celebration for the father in 2015, the father says the mother consumed a full bottle of rum (see paragraph 32);
4. Exhibit 8 is a brief email exchange between Ms Z (of the Department) and the operator of the AA Centre dated 13 July 2018. It confirms that X's last day at the Centre was 7 December 2017. As to the mother's use of alcohol, the letter says:
[38]
"Ms Sanders' alcohol use please see previous correspondence. Ms Sanders did attend our Christmas concert intoxicated."
[39]
The mother's attendance at the Brisbane Show (commonly referred to as the "Ekka") provides the clearest example of the mother's excessive drinking; in a public place and whilst she had responsibility for X and another child. The mother's attempts to suggest the Police report (see Exhibit 5) were either completely wrong or exaggerated, lack credit. Because of a "typographical" error in the recorded reading set out in the Police report, the mother maintained she had not been drinking. The ICL caused a subpoena to issue to the Queensland Police Service, which resulted in a copy of the actual reading being produced - a reading of .223. I accept the Police report about the mother's aggressive behaviour. It is easy to understand why she was so observed to behave in this way with such a high alcohol reading. This incident occurred on 15 August 2017;
Within months of the incident at the Ekka, the tensions between the parents increased - notably the father's refusal to sign X's passport application and her intention to live in Asia caused the father to commence proceedings. After a PACE Alert order was made by the Court, the mother commenced living in a women's refuge in the F region. At least, at this time, the level of support the mother had previously enjoyed from her adult daughter Ms B, was difficult to sustain. The reasons the mother asserted a need for refuge cannot be corroborated - however it seems she got into conflict with the operator of the service and left on 20 August 2018 after nearly two months of residence. A report dated 21 August 2018 to the Department from the service says:
[40]
"During the time they were at the refuge Ms Sanders was drinking alcohol consistently. She would drunk out of a juice box which smelt of alcohol. On Saturday night the on call worker was called out to the refuge as Ms Sanders was out the front of the refuge with X and was very intoxicated. Other residents at the refuge have observed Ms Sanders to be physically abusive to X (no other details known about this). There are parenting orders in place between Ms Sanders and X's father (who was also the reason they were in the refuge). Ms Sanders has requested the ongoing support of the R Service, however the service is unsure how they can help her as Ms Sanders does not acknowledge any of the issues, including the drinking. The service also have an IFS service and they have tried to implement a safety plan with Ms Sanders, however she does not see that there is any issue.
[41]
Quite properly, this report was put to the mother in cross-examination. She claimed that the report was not accurate; the incident related to another family; it was a vexatious report. I do not accept this evidence of the mother;
[42]
More recently, on Thursday 27 June 2019, Police were called to an incident involving the mother and her sister. The Police note (Exhibit 6) refers to the mother reported by relatives as having consumed unknown quantities of alcohol and being "belligerent". As this incident occurred only a few days after the death of the maternal grandmother (who had been a supporter of her daughter), I can accept emotions were high.
[43]
I have reached a conclusion that the mother has a history of excessive use of alcohol which can adversely affect her behaviour - and therefore her capacity to parent. I cannot be satisfied she "drinks" to excess every day. Sadly, because the mother is unable to accept that she drunks to excess, she has not sought treatment. However, as a copy of these Reasons will be provided to her treating Psychiatrist (at his request), this hopefully will enlighten him and allow a discussion with the mother to begin so that this lady effectively deals with these concerns.
[44]
CAN THE MOTHER SUPPORT THE CHILD'S RELATIONSHIP WITH THE FATHER?
[45]
Ms C, for the purpose of gathering a history for the family report, recorded multiple allegations by the mother alleging many serious concerns about the father's past behaviour and parenting attitude and capacity. The mother's self-prepared trial Affidavit (for I am satisfied that is exactly what it was), swears to such opinions she holds about the father - almost entirely negative.
However the fact that the mother's Counsel informed the Court that the mother no longer asserts the father presents as an unacceptable risk (a concession made at the commencement of her cross examination) meant that:
[46]
the multiple allegations of risk against the father from the mother, were not put to him formally;
2. the mother's "scenarios" in her proposed orders for supervised time and/or limited time were not pressed; and
[47]
importantly, the mother was not significantly cross-examined about the allegations (not formally withdrawn) against the father or the reason why she had changed her position in the three months since she swore her Affidavit in early June 2019;
As a result, I retain some residual concerns that the mother's view of the father has not really changed. I believe that the concession made by her very experienced Counsel Mr Baston, was in some ways "tactical" and served the purpose of causing cross-examination to be more focused on the mother's mental health issues and alcohol issues and her defence of such concerns.
Even if the mother's increased vulnerability arising from her mental health and use of alcohol were not significant issues, the mother's attitude to the father and her confident assessment of the excellence and superiority of her parenting, is likely to cause the child X to be influenced by the mother's negative views. The reports of K Group about contact visits reflect the mother's parenting style includes sharing with the child her adult perspectives and concerns. I hold no confidence, if she were the primary carer (which is the mother's primary position), that the mother has any capacity to protect the child from her views of the father.
In contrast, as I explore in the concluding paragraphs of these Reasons, the father's ultimate proposals for the mother to have substantial unsupervised time with X, reflects an awareness by him of the child's strong bond with the mother and the child's expressed desire to live with her mother. That he proposes such orders could be assessed as somewhat naïve to the likely future challenges any sharing of care (even if the child lives with him), that could arise in the future. To some extent that appears to be the position of the ICL, who proposes X have no physical time with the mother.
My examination of the competing proposals through the matrix of the relevant primary and additional considerations attempts to grapple with this issue.
[48]
In considering the primary and additional considerations in a narrative style, I rely upon but do not repeat findings already made earlier in these Reasons.
Greater weight to the risks of harm (s 60CC(2)(b)) than to the benefit to a child of having a meaningful relationship with a parent (s 60CC(2)(a)) is required by clear legislative mandate.
In this case, the mother does present as vulnerable to relapse into anti-social behaviour, aggression and irrationality, particularly if:
She drinks alcohol to excess; and
Does not maintain a close and accepted (by her) therapeutic relationship with a qualified treating Psychiatrist.
On the evidence, I am not satisfied that the number of issues confronting the mother can adequately be addressed by a Counsellor or Psychologist alone. I am satisfied that the mother does continue to suffer mental illness, although it is difficult to diagnose it definitively and it does not seem to manifest every day of her life. Certainly, despite the admission in 2011 in Australia, there is no evidence the mother came to the attention of authorities (whether they be the Police or the Department) on a constant basis. There is little evidence about the mother's employment stability. Her living arrangements seemed to change regularly. In the absence of any evidence from her adult daughter Ms B or other "friends" the mother says support her emotionally, I am left with the clear impression that the mother is often isolated. The Department has never intervened with any intention to remove X from the mother's care - yet they were aware of her challenges - since the child's birth.
The mother is intelligent, articulate and a strong advocate for her rights. This confident demeanour may well encourage others to view the mother more positively than, for example, the ICL contends is the reality. Despite being the primary carer of X from birth to December 2018 - there is only isolated (yet at times concerning) events that brought the mother's behaviour to the attention of authorities as I have set out.
[49]
Although the views expressed by a child of X's age would rarely be definitive, they should not be ignored. The child has expressed to Ms C (as she records), the mother and even the father that she wishes to live with her mother. I take her views into account, however it needs to be recalled that when Ms C interviewed the child on 6 July 2018 and again on 30 October 2018, the child had not spent any consistent time with the father. Her wishes express what she was then experiencing and all that she had ever known.
The father says during his evidence at the trial that although the child expresses wishes to live or return to her mother's care, she also on occasions said she likes living with him. X has no understanding, at her age, of the complex matters affecting the mother as discussed earlier.
The mother has had no opportunity to assess how X's relationship with her father may have developed since he has been her primary carer since December 2018. She discounts as possible any likelihood that the child has "bonded" in any way with her father. I however am comfortable in accepting the evidence of the father and his mother about the developing strength of his relationship with X. I accept it is warm and loving. I also accept that the child's distress at times (which the father acknowledges) has been demonstrated during the supervised visits, confirmed the likelihood that X's primary relationship is still the mother - although I find more evenly balanced with the father than was the case when the change of residence occurred. It would have been difficult at those early stages for the father and his household to manage X's adjustment to that change. I am satisfied he has done so as a committed and loving parent.
The nature of the interim orders has meant the father has been primarily responsible for decision making since December 2018, with the mother having that role exclusively since birth until then. The mother did not seek the father's involvement but I also find the father did not take steps to assert his interest in taking on such responsibilities before then.
Although a dispute arises as to the level of child support the father paid to the mother, I accept his evidence that he paid some support but not consistently and of a modest sum. It appears, as now, the mother survived on government benefits which meant she struggled to make ends meet - but also has little capacity to pay child support to the father now.
[50]
As the Full Court (Kent J) recently observed in Vallans & Vallans [2019] FamCAFC 260, s 61DA(1) of the Act mandates that when making a parenting orders as defined by s 64B of the Act, in relation to a child, 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 for the child. That presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (see s 61DA(4)), and "there must be convincing proof as to the children's best interests for s 61DA(4) to be activated to rebut the presumption" (at [38]).
In my view, the father has discharged the onus (as lies when he says the presumption is rebutted) to establish the presumption should not apply because, in summary, and I find:
[51]
all parties and the ICL all propose, in effect, that sole parental responsibility should vest in the parent with whom the child X lives;
2. the communication between the parents is ineffectual and although to a large degree shaped by the history (where before December 2018 the mother made all decisions without consultation with the father), these parents have not been called upon to make any major long term decisions, I have no confidence that at this point in time sufficient respect and trust exists between them to allow any meaningful discussion to take place;
[52]
Although I am concerned that granting sole parental responsibility to one parent has the effect of limiting that parent's role in decision making and a meaningful involvement to a sense (compliant with the objects set out in s 60B), in this case the mother's parental decision making could be affected adversely because of the risks set out above. It is no answer to say that it has not happened to date on the available evidence - it is still a risk.
[53]
I am satisfied that it is in the best interests of X that she live with the father and that he have an order for sole parental responsibility.
The real challenge in this case that emerges on the evidence becomes how to balance the risks I have identified to X of the mother's parenting with the child's clear wish to spend time with the mother (indeed to live with her), and to maintain and nurture that relationship/
The ICL's proposals would, if adopted, cease all physical time between the child and the mother. The effect of such an order would not be in X's best interests. I expressed some concern about the proposed order, however as I understand the position of the ICL, she was not able to predict if the serious risks identified could ever be overcome.
I accept there are risks, however I, on balance, have formed the view that whilst those issues persuade me (with the other findings also made) that X should live with the father, the mother's risk are not such as to:
prevent any time; or even to
maintain supervised time.
The notes from the extensive supervised visits reveal the mother's inability to protect the child from the issues in dispute, but the mother has the opportunity, with litigation at an end, to focus on her time with X and her own life challenges rather than litigating. I accept her parenting style includes speaking to the child about most things - as if the child were older. This style of excessively open and discursive parenting can be problematic and cause anxiety in a child.
The mother sees no reason to change her parenting style because she regards herself as an "excellent parent" - and in many ways she has demonstrated at times in the past she is.
I am not satisfied the child is at risk of any physical harm from the mother. The emotional and psychological risks that could arise in the mother's care will be balanced by the orders I propose to make by:
[54]
ordering the majority of care is provided by the father;
2. adopting the father's proposal, but graduating time more slowly than even he proposes to allow X and the mother to adjust to, what the mother described as, the "new deal";
[55]
encouraging the father to be alert to the need for X to have counselling to support her adjustment to returning to more (and unsupervised) time with the mother - whilst she remains in his primary care;
[56]
requiring the mother to maintain her therapeutic relationship with a Psychiatrist and to provide a report at six monthly intervals - together with an obligation for the mother to inform the father if she changes or ceases such consultations with her Psychiatrist;
2. supporting the father's considered proposal which necessarily requires him to monitor the child's relationship with the mother through usual observance of behaviour and comments.
I did not lightly take a view that the ICL's proposal should not be accepted. As Ms C says in her evidence, the mother's attendance and compliance with psychiatric therapy enlivens unsupervised time options. It would be comforting to see this mother aged nearly 45 years, using her clear intellectual gifts and abilities (as well as what she claims are her tertiary qualifications and training), to gain employment; improve her socialisation; become more financially independent and improve her transport options as by doing so, X will have available to her as a role model that she loves, an example to follow.
Also, in my view, it would be contrary to principle and indeed common sense, to disregard the tenor of the father's proposal permitting the child to spend unsupervised time. Not only has he had the benefit of experienced Counsel and instructing solicitor, in formulating his final proposal, but he has to make it work. Even though the Court and the ICL could claim a level of objectivity, this is a young child with a long journey of co-parenting in front of her. I give significant weight to the clear intentions of the father reflected in his submissions.
The current concerns I have expressed about the mother's access to transport makes it difficult for the Court to be satisfied that the mother, in a practical way, can attend school days on a Friday and return to where she is living or, more importantly, have the child X at school for the commencement on a Monday - without the child enduring significant travel time on public transport. As a guide to these parents, but not to be construed as an order, if the mother is able to meet this travel concern and the graduated weekend time presents no other difficulties, an extension of weekend time from after school Friday to before school Monday (as the father's proposal indicated) might be in the child's best interests from the commencement of the 2021 school year. The fact that the orders pronounced allow the parents to consent in writing to other times, would enable this to occur.
[57]
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 31 January 2020.
[58]
That the father have sole parental responsibility for the child, X, born in 2014 ("the child").
That the child live with the father.
That the mother provide to the father by email by a date no later than March 30, 2020 and thereafter every six months, a letter from her treating psychiatrist that:
confirms the mother's continued attendance upon her treating psychiatrist at such treatment intervals as recommended by her treating psychiatrist; and
confirms that the mother has complied with all recommendations of her treating psychiatrist including the taking of any medication that may be prescribed by the treating psychiatrist.
That the mother shall spend time with the child as follows:
[59]
For a period of three months from the date of these Orders, every second weekend from 9am Saturday until 4pm Sunday;
2. Following the expiration of the period provided in 4(a) herein, then for a further three month period every second weekend from after school Friday (or 3pm if not a scheduled day of attendance) until 4pm Sunday;
[60]
Thereafter, every second weekend from after school Friday (or 3pm if not a scheduled day of attendance) until before school on Monday (or 9am if not a scheduled day of attendance);
[61]
Commencing in 2020, during the gazetted Queensland Easter, June/July and September/October school holidays, as follows:
1. For one week from after school on the last day of the school term until 9am on that day in the following week.
2. Commencing in the Christmas school holidays in 2020, and in each Christmas school holiday thereafter, as follows:
1. In Odd-numbered years on a week about basis with the mother to have the first week of the Christmas School holiday period; and
2. In even-numbered years, on a week about basis, with the mother to have the second week of the school holiday period; and
3. For the purposes of this Order, the Christmas school holiday period will commence on the afternoon of the last day of the school term and conclude at 4pm on the Friday prior to the commencement of Term 1 and thereafter the arrangement set out in Order 4(c) herein shall recommence the following weekend.
3. On Mother's day, if the child is not already spending time with the mother from 4pm on the Saturday prior to mother's day until 4pm Mother's Day;
On Christmas Day each year Order 4(e) shall be suspended and the parents spend with the child as follows:
In odd numbered years with the mother from 8am until 12pm and with the father from 12pm until 4pm; and
In even numbered years with the father from 8am until 12pm and with the mother from 12pm until 4pm.
Each year on the child's birthday, the non-custodial parent shall spend time with the child as follows:
if on a weekday from after school until 6pm; and if not on a scheduled school day from 2pm until 6pm;
On father's day, if the child is spending time with the mother, Order 4(c) herein shall be suspended, and the child shall spend time with the father from 4pm the Saturday prior to Father's day until 4pm Sunday.
That all changeovers in relation to these Orders occur at the child's school as appropriate and if not a scheduled day of attendance then as agreed in writing between the parties and if no agreement, then at Hungry Jacks Suburb EE.
That either parent be at liberty to telephone/facetime the child between the hours of 6- 6.30pm (or such other time as may be agreed in writing) on Wednesdays and Sundays with the non-custodial parent to initiate the call and the custodial parent to facilitate the call.
[62]
That neither parent shall denigrate, assault, harass or intimidate the other party to or in the presence of the Child and shall do all such things as to ensure any third party associated with them does not denigrate, assault, harass or intimidate the other party and in the event that such behaviour occurs, the parent shall take all reasonable steps to remove the child from the presence of that third party.
That both parties will not involve the child in adult issues as between the parties.
That both parents be permitted to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
That each party is at liberty to attend at the said child's school for the purposes of any function or activity normally attended by parents subject to the policies/requirements of the child's school.
That these Orders act as an authority to any health care professional, educational facility or extra-curricular activity provider upon whom the child attends to provide all information, and documents with regards to the child to each parent at the cost of the requesting parent. The parents shall keep each other informed of the names and addresses of any treating medical or other health practitioner who treats the child.
Such further or other Order as this Honourable Court deems meet.
[63]
That all previous orders and injunctions made in this matter be discharged.
That the father have sole parental responsibility for the child, X, born 2014 ("the child").
That the child live with the father.
That the mother shall spend time with the child as follows:
[64]
By telephone or any other electronic means Wednesdays and Saturdays between the hours of 6 - 6.30pm (or such other time as agreed between the parties) with the mother to initiate the call and the father to facilitate the call.
2. By telephone or any other electronic means on the child's birthday, on the mother's birthday, on the mother's day, at Christmas and Easter between the hours of 6.30 -7.00am (or such other time as agreed between the parties) with the mother to initiate the call and the father to facilitate the call;
[65]
The mother shall not discuss or question the child about:
1. the matters pertaining to the subject matter of these proceedings;
2. matters relating to the father, his household or his care of the child; or
3. any matter which is not age appropriate to discuss with the child.
[66]
The mother shall surrender all passports which she holds for the child to the father.
That neither parent shall denigrate, assault, harass or intimidate the other party to or in the presence of the child and shall do all such things as to ensure any third party associated with them does not denigrate, assault, harass or intimidate the other party and in the event that such behaviour occurs, the parent shall take all reasonable steps to remove the child from the presence of that third party.
That both parties will not involve the child in adult issues as between the parties.
That both parents be permitted to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
That these Orders act as an authority to any health care professional, educational facility or extra-curricular activity provider upon whom the child attends to provide all information, and documents with regards to the child to each parent at the cost of the requesting parent. The father shall keep the mother informed of the names and addresses of any treating medical or other health practitioner who treats the child.
That MS SANDERS her servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove the child X born 2014 from the Commonwealth of Australia.
The Marshall of all officers of the Australian Federal Police and of the Police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child's name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child's name on the Watch List until otherwise ordered by this Court.
The Court requests that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
Legislation Cited (2)
Law Act 1975
Law Rules 2004
AI Analysis
Outcomeplaintiff
Disposition:
The father was granted sole parental responsibility and the child was ordered to live with him; the mother was granted graduated unsupervised time, subject to psychiatric reporting and other parenting, travel and conduct orders.
(iii) For the purposes of this Order, the Christmas school holiday period will commence on the afternoon of the last day of the school term and conclude at 4.00pm on the Friday prior to the commencement of term one (1) and thereafter the arrangement set out in Order 5(c) herein shall recommence the following weekend.
(f) On Mother's Day in 2020, if the child is not already spending time with the mother, from 9.00am to 4.00pm;
(g) Commencing on Mother's Day in 2021, if the child is not already spending time with the mother, from 4.00pm on the Saturday prior to Mother's Day until 4.00pm Mother Day.
(6) That on Christmas Day each year Order 5(e) shall be suspended and the child shall spend with the parents as follows:
(a) In odd numbered years with the mother from 8.00am until 12.00pm and with the father from 12.00pm until 4.00pm; and
(b) In even numbered years with the father from 8.00am until 12.00pm and with the mother from 12.00pm until 4.00pm.
(7) That each year on the child's birthday, the parent who does not have the care of the child shall spend time with the child as follows:
(a) if on a weekday, from after school until 6.00pm; and if not on a scheduled school day, from 2.00pm until 6.00pm.
(8) That on Father's Day, if the child is spending time with the mother, Order 5(c) herein shall be suspended and the child shall spend time with the father from 4.00pm the Saturday prior to Father's Day until 4.00pm Sunday.
(9) That all changeovers in relation to these Orders shall occur at the child's school as appropriate and if not a scheduled day of attendance then as agreed in writing between the parents and if no agreement, then at Hungry Jacks Suburb EE.
(10) That either parent be at liberty to telephone/facetime the child between the hours of 6.00pm and 6.30pm (or such other time as may be agreed in writing) on Wednesdays and Sundays, with the parent who has the care of the child to initiate the call and the other parent to facilitate the call.
(11) That the parent facilitating the call pursuant to Order 10 herein shall afford the child privacy during such communication.
(12) That the child be enrolled at and attend N School for the duration of her primary school education.
(13) That the child continue to attend upon FF Medical Centre as her medical practitioners save for any emergency treatment.
(14) That the child not be removed from the Commonwealth of Australia.
(15) That unless otherwise ordered or with the written consent of both parents pursuant to s 65Y of the Family Law Act 1975, each parent, MR TARO born ... 1976 and MS SANDERS born ... 1975, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia for a period of (10) years.
(16) That the Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child's name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child's name on the Watch List until further order of the Court.
(17) That the mother shall surrender all of the child's passports to the father within seven (7) days of the date of these Orders.
(18) That the mother is prevented by injunction from consuming any alcohol or any illicit substance while caring for the child.
"when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents"
The father says, and I accept, that the mother permitted him to see X up to three times a week in her presence after she was released from hospital. The father asserts his concerns about the mother's excessive use of alcohol continued and he witnessed the mother using alcohol to excess on many occasions. It does little credit to the father, if he held the concerns he did, that he seemingly took no action to intervene to protect the child. At least he had a chance to maintain daily contact with X from around October 2014, when the father lived downstairs in a house occupied by the mother in Suburb GG. I accept the mother's evidence that she never left X alone with the father - who, on any version of his history, was an inexperienced parent.
By March 2015, the relationship between the parents was characterised by constant arguments - both alleging the other parent was often intoxicated. The material refers to incidents involving the mother's nephew, however these issues were not explored at all in cross-examination and I make no particular findings, save to record by late 2015 or early 2016, the mother essentially ceased all contact between the father and X.
In the absence of any structure through a parenting plan or court orders, it is difficult to be certain what time the child X spent with the father during 2016 and 2017, however I adopt the father's description as sporadic and certainly, as the mother asserts, never unsupervised. In those circumstances, although the mother's trial Affidavit raises allegations of the father "absconding" with her nephew; in August 2017 he appeared to be "orally assaulting X's vagina" (paragraph 101); and took sexualised images of himself which he shared with X, the father was not cross-examined about these serious allegations by the mother's Counsel - all of which the father had denied in earlier Affidavits.
Although the obvious answer to why such allegations continued to be raised in an Affidavit (containing 578 paragraphs) affirmed by the mother on 3 June 2019 were not pressed appears to be that the mother prepared, with little (or no) legal assistance, her trial Affidavit but gave instructions to her Counsel not to press the issues.
I was left with the clear impression, when the mother's cross-examination was taken as a whole, that she is prone to both exaggeration and creating some fictions about the father, whilst at times being both evasive and minimising her own conduct. I return to these concerns when examining the issues of risk later in these Reasons.
By late 2017, the father says the mother threatened him that he will never see X again, which was in part a response to father's refusal to sign a passport application for X to travel overseas. The father's concerns, he says, were exacerbated when he read a Facebook post by the mother that she intended to move to Asia with X.
As noted, and the mother asserted, the mother felt she had the opportunity to work in Asia and that would be a good opportunity for her and X. I should record, that the type of employment the mother constantly alleged was available to her in Asia is very vague; corroborated to some extent by Exhibit "No.01" and, in the end, the mother makes no such application. "No.01" is signed by the mother, but not "the school". It also contains (at "No.02") a form of medical certificate dated 2 April 2018 - which in respect of disclosures as to "mental confusion" and "psychosis" may not be accurate historically. There is no evidence the mother has any formal qualifications, although she is highly literate; very articulate and claims to have an extremely high IQ. By the time the mother is alleged to have posted some further details of the Asia trip (which the mother said would last for two to three years), the father's concerns meant he did something formally - other than merely seeking to satisfy s 60I of the Act to arrange mediation. He filed an application in the Federal Circuit Court of Australia on 29 March 2018 and ultimately a PACE Alert was ordered and the matter was transferred to the Family Court of Australia on 22 May 2018.
In late June 2018, the mother entered a women's refuge organised by P Group - in the F region. The basis of such action is very confusing, especially considering the lack of contact between the father and X (as well as the mother). What is apparent is that the Court proceedings would have caused some stress for this matter and even though the mother did attend Court ordered interventions, the father's application on 31 July 2018 that the mother return to Brisbane would have added to the pressures on the mother.
On 20 August 2018, the mother and X moved out of the refuge. The note on the records of the Department of Child Safety, Youth and Women ("the Department") sets out concerns from the R service about the mother's drinking, which in cross-examination, the mother denied. By this time, the mother and X had participated in a Child Inclusive Conference with Ms C (Family Consultant) on 6 July 2018, with Ms C urging a cautious approach in what she described as a "complicated" matter.
However by the time Ms C conducted interviews on 30 October 2018 for a family report, the parents had undertaken (at the request of the ICL) an independent psychiatric assessment by Dr D on 20 August 2018 (father - resulting in a report dated 28 August 2018) and on 24 August 2018 (mother - resulting in a report dated 14 September 2018).
Considering the concerns raised by Dr D in his report on the mother concluding "she cannot be placed in charge of a child without appropriate mental health care", I am very confused and retain some disquiet, why Ms C was not provided with a copy of both reports by Dr D on the parents, BEFORE the interviews on 30 October 2018. Certainly, the "File documents read" section of the family report does not mention the psychiatric reports and Ms C even remarks that "...this assessment would have been assisted by Dr D's psychiatric assessment of the parents" (and see further paragraph 125). I also record, with the same degree of concern, that Dr D's report on the mother indicated that:
"bizarre behaviour"
It may be that the father launching these proceedings (and demonstrating a wish for greater involvement in X's life) has been a trigger to the mother's escalating use of alcohol and at times bizarre behaviour at times.
It is in X's best interests that she have a meaningful relationship with both parents. The father's lack of real parenting experience until thrust with the full-time care of X in December 2018 was a risk, considered both by Ms C as well as this Court at that time.
He is still learning "on the job", but on balance he offers more certainty and security for X and has, on the evidence, the support of his mother. Sadly, the maternal grandmother, who lived next door to the mother, was a support to her daughter and her death is a tragic occurrence for both the mother and, I find, X.
As to the "likely effect" of any future changes, I accept the evidence of Ms C that if I find now that X is reasonably settled living with her father, then another disruption returning her to the mother's care, would not be ideal. However, as I discuss further below, I have formed the view comfortably on all the evidence, that the father can offer a more stable and secure routine for X that does not expose the child to the uncertainties and changes that could arise in the future from the mother's mental health issues; her use of alcohol and the adverse effects of same.
It follows that I find the father is better able and has more consistent capacity to care for X, than does the mother at this time, and to meet her emotional and intellectual needs. However, this finding does not ignore the fact that the father has relied upon his mother and her household as well as extended family. It was only proper that he do so. I am satisfied he will still have support even if, as he desires, he moves with X into a home he can share with his father. The paternal grandmother presented as a caring and loving grandmother and will maintain her relationship with X. Although I had no evidence from the father's sister, she lives in South East Queensland and has two children slightly older than X - who of course are her cousins. The support now available from family of the mother for her is very unclear. I am satisfied that in the past the mother had a close relationship with her adult daughter Ms B - but whether that currently exists is uncertain. Ms B gave no evidence.
In practical terms, the father has part-time employment, a car and a driver's licence. He has indicated a possibility of moving to the Suburb BB area closer to the child's school. The mother lives in Suburb CC in rented accommodation. She says although she can drive she has not done so for over 10 years. She claims she has no impediment to getting a full driver's licence but seems satisfied that she can manage transport needs through public transport. She gave no evidence of a willingness or desire to get a motor vehicle or demonstrated any capacity to do so.
If she continues to live at Suburb CC and the father lives in the Suburb BB area, I hold some concerns as to how changeovers can be practicably facilitated. The lack of evidence about these practical arrangements is concerning - and provides some limitations as to how changeovers are to occur wherever the child lives. It would not be appropriate for the father to indefinitely meet all the travel responsibilities.
I rely upon earlier findings made in respect of the parents' attitude to parenting. It cannot be said that either parent demonstrates a poor attitude to parenting - and the values most parents regard as important to instil in their child.
I am not satisfied that family violence issues exist now between these parents - although the mother asserted (but did not explore when the father was available for cross-examination) that the father had emotionally and financially abused her. Her allegations of "stalking" lacked any probative evidence and seemed more likely to be a manifestation of the ability of the mother, at times, to regard events around her as a conspiracy or a more bizarre incident.
The father was cross-examined about an incident with a former partner. He gave a fulsome explanation - said he regretted his actions - and I accept his explanation. No evidence was offered from the other female adult to enable the Court to make any findings adverse to the father. There are no current family violence orders between the parents, nor does it appear any formal applications have been made in the past.
Section 60CC(3)(l) requires the Court to consider making an order "least likely to lead to the institution of further proceedings in relation to the child". The mother in this case is unlikely to accept, as in the child's best interests, any orders which do not include the child X living with her. As a result, I have every expectation that whatever is contained within these Reasons to explain the Court's decision, the mother's position will be to appeal, seek to vary or sadly not comply. I hope that compliance occurs because further uncertainty and instability in the parenting arrangements for X would not be in her best interests.
In the preparation of these Reasons, the Court contemplated whether the issues that surround the mother's challenges and potential risks to X are such that the Court should consider making interim orders. I received no submissions in this case to do so, but in any event think it is important for some finality to be attempted - which the orders I pronounce are designed to achieve.
For these reasons, the orders which I pronounce today and are set out at the commencement of these Reasons are, in my assessment, in the best interests of X, at this time.
That the parent facilitating the call pursuant to Order 9 herein, afford the child privacy during such communication.
That the child be enrolled at and attend N School for the duration of her primary school education.
That the child continue to attend upon FF Medical Centre as her medical practitioners;
That the child not be removed from the Commonwealth of Australia.
Until further order each party, their servants and/or agents be and are hereby restrained by injunction, from removing or attempting to remove or causing or permitting the removal of X, born 2014 from the Commonwealth of Australia for a period of (10) years AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the child's name on the Watchlist for the said period, or until the Court orders its removal.
The mother shall surrender all of the child's passports to the father within 7 days of these Orders.
That the mother is prevented by injunction from consuming any alcohol or any illicit substance while caring for the child.
The reasons for the judgement delivered in this matter be provided to Dr L, the mother's treating psychiatrist.