Father Appeals Interim Orders for the Mother's Supervised Time with Children
Collins & Monroe [2021] FedCFamC1A 75
Interim orders were made for the child to spend supervised time with the mother at a contact centre. The father appealed such orders. The Court, in resolving this dispute assessed whether the primary judge weighed up the risks to the child and balanced those risks and any ameliorating (make (something bad or unsatisfactory) better) factors against the child’s right to a meaningful relationship with the mother.
Facts:
The parties were in a relationship for a little over two years in duration from which the child was born. Following the termination of the relationship, (when he was about one year old), and until January 2018, (when he was aged six years), the child lived in the primary care of the mother. During this period of five and a half years, amongst other things, the mother’s intoxicated or drug affected behaviour (evidenced in contemporaneous hospital or police records) adversely impacted upon the child’s welfare. On 6 January 2018, the mother suffered a psychotic episode upon her discovery that her mother (“the maternal grandmother”) had placed the child in the care of the father.
It led to her abducting and assaulting the maternal grandmother. Arising from the ensuing criminal charges against her, the mother was in custody for six months in respect of her offending and was released on 10 July 2018.
In the meantime on the 19th of April 2018, the Court made interim orders for the father to have sole parental responsibility for the child, for the child to live with him, and for the mother to be restrained from coming within 100 metres of the child. Orders were made for telephone communication between the child and the mother to be as agreed between the parties.
No such communication has occurred due to the father’s refusal to agree. After 6 January 2018, the child did not see the mother again until 22 October 2019 and then only in the presence of Dr B during the course of the preparation of his expert report in the parenting proceedings.
Subsequent to the 22nd of October meeting, the child again has not spent any time with the mother. In 2019, Professor D, a psychiatrist, diagnosed the mother with postpartum psychosis; post-traumatic stress disorder; persistent depressive disorder; separation anxiety disorder; and alcohol use disorder.
He recommended that the mother’s criminal charges be dealt with under the Mental Health Act 1990 (NSW) rather than through the criminal justice system, and this occurred on the mother’s plea of guilty.
Dr B in his capacity as single expert, recommended that the child spend supervised time with the mother.
The primary judge concluded that the risk to the child has been minimised and considered the childs right to be given an opportunity to have a relationship with his mother and for that relationship to commence in a safe space such that a contact centre provides. Her Honour found that the mother should not, on an interim basis, spend unsupervised time with the child, she ordered that supervised time occur at the K Centre.
By Amended Notice of Appeal filed 16 August 2021, the father appealed such order.
Issue:
Whether or not a meaningful relationship with the mother would be an advantage to the child.
Applicable law:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Analysis:
The primary judge understood that the father was seeking an order that the child spend no time with the mother on both an interim and final basis. The evidence from the child’s treating psychologist Ms G, was that the child presented with symptoms and behaviour consistent with childhood trauma, and that the mother posed a risk to the child’s “psychological welfare”.
On the mother's side was evidence from the her treating psychologist as to her improving mental health and positive progress and this was recognised by the primary judge. The primary judge noted the child’s wishes to see the mother but did not regard them as determinative.
The primary judge indicated that she was making a determination as to the child’s best interests on the basis of the competing risks as assessed by her, and the evidence going to any amelioration of those risks.
Her Honour considered the evidence of the father about the impact that contact with the mother would have on the child, and weighed that evidence in the exercise of her discretion.
The primary judge referred to the father’s assertion that in 2020 the child’s behaviour had changed, and that the child had become more anxious as a consequence of having telephone communication with the mother. Her Honour gave significant weight to the evidence which was presented to the Court by the father, together with the child’s school reports, which were contained in the father’s tender bundle, with those school reports attesting to the child making excellent progress at school after being at a “very low base” when in the mother’s care.
Weighing up of those matters and risks as against the benefits to the child of pursuing a meaningful relationship with the mother within a structure that ameliorated those risks, if that was possible, was the very basis for the decision that any time spent between the child and his mother was required to be supervised by a professional agency.
Conclusion:
The Court dismissed the Amended Notice of Appeal.
The appellant is ordered to pay the Independent Children Lawyer’s costs of the appeal fixed in the sum of $4,356.00.