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Best Interests of the Child, Effect of Contact on Mother

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Greetings



I am hoping someone can help me with some guidance or case law2.

My daughter lives with her mother and has so since birth. The mother only wanted a child and left the relationship as soon as she fell pregnant. She has fought bitterly and strongly against any contact by the child with her father and siblings. She has made the child the centre of her life and our daughter does not visit friends on the weekends or have any activities that doe4s not involve her mother. There is a provable history of the mother make spurious claims to forward her case. My daughter and I had a short period of contact however the mother stopped this because it was making her mentally ill and there was no circumstance in which she felt contact could occur and not make her ill. Mental illness has been hinted at as a reason to deny contact but never fully disclosed during the Family Court action and her lawyer refused to allow such material to be subpoenaed as "fishing".

After the contact period above, she produced an affidavit making all sorts of accusations including sexual assault on her, attempted molestation of our daughter in her presence, aggressive behavior, wanting her to have another baby, etc etc all of which could be refuted was later including emails she had sent, sms messages she had sent and a large body of evidence showing she was exaggerating and simply being untruthful. She also has a history of not obeying the court orders

When this rebuttal evidence was produced, another affidavit was produced that changed the tone completely that presented a rambling case of her suffering from mental illness and stress, taking two medications, seeing a psychologist and struggling to cope with the stress of the court cases and critising the court decisions that had been made in my favour. She however stated she was OK now but her health was fragile

The child was asked about her wishes for contact; however the child looked to her mother before answering any question, was not assertive in any way and stated that her mother did not wish her to have contact. When the child had physical contact however in the presence of this expert, she went to my lap for a cuddle and a hug and was smiling. There is a large body of evidence showing that she enjoys contact. The expert advised her attending Assertiveness training

The judge has made a decision for there to be limited supervised physical contact (2 hours per month) based I am told on the fact that the stress of contact occurring upon the mother based upon her mental illness would impact and compromise her ability to care for our daughter. The matter is returning to court in 12 months so the Childs spoken wishes can be taken into account however there are no orders for assertiveness courses. The judge did not also investigate her allegations of assault of attempted molestation but made findings that there was no evidence of any danger to the child from me.

I as a SRL have made an appeal against this because

a) There is a body of evidence to show she lies and fabricates events to support her case

b) If she is lying about the above, how it is logical she is lying about having the mental illness

c) Also if she is lying about the above, she could be lying about her mental illness being under control

d) The Judge made no effort to and did not allow the magnitude and severity of the mental illness to be ascertained. The only knowledge about it is the mother's evidence in over the phone that she was OK. (She was requested to attend in person but refused to do so)

e) My daughter suffers from a potentially life threatening medical condition that requires careful care of her. I am trained in such care as is the mother. If the ability of one is compromised, then this needs to be ascertained

f) My daughter has near age half siblings and a paternal family that wants to see her. Her mother "builds her life around her" to quote the mother and has no other social outlets or relationships of any form. My daughter does not see anyone apart from at school. It would be of benefit to her to have sisters and brothers.

g) Also there is concern that in the mother's home environment, if there are any problems, it would not be readily seen.

h) The allegations made by the mother of sexual abuse are very serious and surely need investigation. If they are demonstrately false then this has a significant impact upon the parenting ability of the mother. The Judge appears to have just accepted them as another outburst and ignored them.

  On appeal, I want Orders made so that her psychologist can be contact and her mental health records accessed. (As mine here when my mental health was in question) and for the mother to attend therapy to help her accept contact would be occurring between the child and the father and paternal family

  Is anyone aware of any case law relating to matters similar to this?



An appeal is based on errors of Law, not taking parts of the ACT into consideration or that due weight was not given to certain evidence.

Generally appeals do not result in any new orders but rather the case is returned to Court.

Without perusing the Judgement to ascertain errors many of your points are likely to be thrown out.

http://flwg.com.au/srl-r/pg/start

www.srl-resources.org




SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.
Thanks for your response. This matter is important not jsut to me but as a test case in some respects. I live in Western Australia and we are under the Family Court of WA. I have to thus appeal this matter to the Supreme Court of WA  The established practise over hear is that the best interesats of teh child are served by keeping the motehr happy and able to care for the child and there have been several cases where a worthy parent has been sidelined not because of a failing but because of a concern over the mothers ability to care for the child may be impacted. The family court of australia however in similar cases sends the parties to therapy but does not stop contact. I would prefer this to be the case here.



I have recent decsions of the FCA where similar issues have faced the court and the outcome has been for therapy. I am proposing this as wht the judge should have done however from what youa re telling me, I have to establish that the Judge made an error in not doing this or could this simply be an error in law that the law instructs the best interests of teh child to come first and for the reasons above the best interests of the child are served by this alternative solution.?



Also as i read it, I should be argiueing that by failing to give appropriate weight to the evidence that the other party was decietful, the Judges subsequent orders and findsings were flawed?



Rgards and thanks
Impossible to assist in this matter without reading:

a. Complete transcript of hearing

b. the judgement

4MYDAUGHTER
Kermie - haven't got anything for you in the way of SRL advice, but just a comment on the issue of mental illness in the mother, based only on my experience with a very similar mother (one daughter, isolates child, very posessive, attempted to deny father access repeatedly, etc).

The issue of mental illness would seem to any normal person like an issue of concern when it comes to the welfare and well being of the child. However, I have found that whilst it's difficult to use that against the mentally ill mother, the mother seems to be able to use it to her advantage at will. As you've suggested, the alleged "illness" can be used to claim that the stress of child/father contact will worsen the condition, therefore compromising her ability to care for the child. The obvious solution in my opinion would be to then pass the child on to the mentally stable father. But others here have suggested that "primary attachment theory" may  make judges reluctant to remove the child from the parent that has already formed a primary bond. So mother's "mental health" is given priority over father/child relationship.

Unfortunately, whether real or feigned, her mental illness will not be considered detrimental to the child's welfare unless she actually becomes incapacitated or very obviously delusional. And even if this happens, so long as she is "treatable" and complies with treatment, the child will never be removed from her care, nor anything done about the potential emotional/psychological effects of living with an unstable parent. Even if the mother ends up being involuntarily hospitalised, the child will be returned to her as soon as she is released and complying with treatment. In reference to sub point g), there will be no weight given to the "potential" problems that could arise from her condition, unless and until something actually goes wrong. If for example, she becomes agitated/delusional and you report your concerns about her mental state to DOCS, they will kindly inform you that they will not investigate unless she harms the child or puts her at considerable risk - regardless of her diagnosis, past history or anything else.

In reference to sub point f) - at times, mental illness appears to be an accepted excuse for generally unacceptable behaviours (outbursts, fabrications, false allegations and so on). The mother I have referred to made claims that her daughter was sexually abused by her father, after aggressively coercing the child into false statements. By the time it went to court, she had lost the plot and become an involuntary patient, meaning adjournments and huge expenses. There was absolutely no evidence, and the child admitted to DOCS workers that it was not true. However, the judge declined to award costs when it was eventually dismissed, as the false claims were put down to the mental illness. The child was back with the mother only weeks later. The "illness" has also gotten her out of paying costs on a clearly frivolous AVO case, as apparently her paranoia means she truly believes she is being harassed, even when there is no evidence.

The ways in which this trump-card label of "mentally ill" can be abused are seemingly endless. I really feel for you and your daughter, and hope you are able to find the right angle to kick an appeal off. I think you're more on the right track with failing to give adequate weight to the evidence of her propensity to fabricate events. I'm not sure how you would approach it, but I think there's a flaw in the fact that impact on her mental health was the primary reason for minimal  contact with the father, yet the exact specifications and extent of this mental illness were not ascertained? But the SLR's are better with that stuff. Good luck!
Thanks for that sensible advise Rabbit

Unfortunately Mental illness seems to be a two edged sword. I developed depression as a result of trying to see my daughter and not helped by later demonstrably false allegations and spent years trying to prove myself competent for contact. Every treating professional stated there was no risk to the child but that didn't seem to count. Unfortunately my case is one where the mother simply wanted a child and not a father and it where all the science of what is best for the child runs aground on the rock of superstition, truisms and the veneration of motherhood.

I am being very careful in this matter to refer to the mothers assertions that she has a mental illness not actually stating that she has a mental illness and trying to say the Judge should have investigated whether this was the case given past evidence of her failure to comply with court orders and be truthful and the lack of any actual evidence supplied of such a condition. I am taking it the next step forward as well as saying that given the mote hr has asserted that she has a mental illness that could be affecting the child, the Judge should have investigated the matter further to see if there was any risk to the child.

The FCA seems to be taking a better approach to this, I have found two cases (2010)where the mother asserted sexual abuse, they were found to be false but the mother opposed contact strongly or had mental health issues regarding this and the court ordered the contact to go ahead but the mother to attend therapy to accept the child was going to have contact regardless.

This case in itself has been unusual. There has not been any formal hearing nor indeed the normal applications filed with the court. Its carriage has been on the basis of a contravention application and a series of special appointments. The Judge simply heard oral submissions and evidence given in the stand by myself and over the phone by her. The judge specifically refused to commit it to a formal resolution path or a hearing. The powers that Judges have to go outside of the system is amazing to me.
These arguments you raise here should have been matters for consideration in the first instance hearing.

The attached document on 'Appeals' might be of assistance to you but of course this relates to the Family Law Act and NOT the Family Court Act (WA).

You will need to get a transcript of the hearing.

Attachment


PS - Just read your previous post. These orders came out of Contravention Proceedings? So your 'Appeal' relates to a decision made from Contravention proceedings? That's interesting.

Last edit: by 4mydaughter


4MYDAUGHTER
Thanks for that link

As part of the appeal process, an electronic copy of the transcript has been ordered. If I order a paper copy myself, I cant afford it whereas if I include it as part of my appeal books as an electronic copy, the appeal Court organises obtaining the electronic copy and there is no direct charge.

With respect to a first instance hearing, I got rather ambushed by this. We had had a series of ongoing special appointments of 15 minutes before the main court commenced over 5 years with objections to contact being raised, evidence to contradict this submitted, reports prepared, reports discredited, interview of the child. contradictory outcomes , refusal of the mother to accept presents, court order for mum to accept presents etc. I was asking for the matter given the complexity and contradictory nature of the large volume of material accumulated and suggestions of falsehood to go to a formal hearing when this could be tested. The Judge scheduled for an afternoon appointment as she wanted to hear some argument from the parties involved as to Werther contact should be occurring and told the mothers solicitor that the mother was to attend.

Unfortunately on the afternoon, the mother did not attend, I gave evidence in the stand and was asked questions by Judge and her lawyer, she gave evidence over phone and Judge gave the orders. I asked about a formal hearing and was told that this was not going to occur. the Judge then adjourned the matter until after the child's 12th birthday effectively saying that she will then end the matter on the basis of the child's wishes at that time. (despite the fact that the cometency of the child to make a decision had been called into question by an expert and assertiveness training recommended).

I beleive the Judge simply wants the matter to go away and the best interests of the child have gone out the probverial window
Were you given notice of the mothers intention to give evidence by electronic means or was it imposed upon you on the day?

4MYDAUGHTER
No I was not given any notice

Her lawyer simply told the court that she wasnt there but he had her telephone number and the judge said well thats unfortunate lets see if we can contact her on the telephone.

To the best of my knowledge, my opinion or otherwise was not sought.
That would seem a denial by the Judge of 'due process'. Not totally up with Family Court Act (WA) but were the normal rules of evidence waived by the Judge given the proceedings were child relate?

Interestingly, I thought Contravention proceedings operated under stricter rules of evidence than normal hearings?

4MYDAUGHTER
The Family Court Act of WA mirrors the Family Law Act of the Commonwealth to such an extent that the Family Court Act contains the paragraphs numbers of the corresponding Family Law Act sections and content. Basically if its in the Family Law Act its in the Family COurt Act and this leads to some interesting contradictions. At one stage I beleive that the FCWA was against relocation of children away from the other parent and the FCA was doing the opposite. This is also a matter where the FCWA contradficts the FCA based on what I have seen.

No mention was made of the rules for evidence, should the Judge have done so?.

The unusual point about this matter however, is that the contravention application was filed in 2005, heard in 2005 and a judgement was given. (she was found guilty and told not to do it again). However since that time, there have been special appointments made to look at contact. There have been a progression of these special appointments ongoing. I still dont understand how you can have carriage of a proceedings without an application to the court.

I was told by Senior Counsel that there was a familiarity of proceedings and almost like a cliche formed between Judge, Childrens lawyer and the Mothers solicitor.  Personally, I also believe this has been a means of delaying the matter and preventing the normal resolution to informally protect the mother.
So are you telling me that this decision was not made as a consequence of an application being filed?

4MYDAUGHTER
Kermie62

Appeals are damn hard work. The obstacles and prejudices employed to discourage the unrepresented can be insurmountable.  Start memorising Austlii and have your security for costs and transcript excerpts ready.

You cannot defeat a discretionary decision on the basis of weight given to particular pieces of evidence. That is the judge's discretion. Weight and creditability can only be considered if there is a proved error of law or a procedural unfairness and even then they will likely find the decision the be plainly right or the judge had the advantage of seeing the witnesses, etc… My advice was an appeal succeeds on what was left out of the judgement.

I suggest you start by reading  what Kirby J says in CDJ v VAJ [1998] regarding the principles which govern an appeal of this nature, being an appeal against discretionary orders; see House v The King [1936] HCA 40; (1936) 55 CLR 499 and Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513.

You seem to asserting that the trial judge failed to take into account or give appropriate weight to the Mother's parenting capacity in particular in regards to providing for the emotional and intellectual needs of the child and/or her ability facilitate to facilitate a relationship with the Father and significant others. Presumably the mental health issues would have been covered in the Family Report by the psychologist/psychiatrist. The judge would have to provide adequate reasons for disregarding such expert evidence.

There seems little doubt, prima facia, the Mother will have difficulty facilitating relationship in circumstances where she has argued that such contact will make her unwell and the sexual abuse allegations made and in particular the orders for the minimal time given.  One must assume there was evidence to rebut the presumption of "meaningful relationship"

There is an old first instance judgement that denies contact with the non-resident parent on the basis of the assumption that the welfare of a child depends upon the emotional and psychological stability and security of its primary carer or residence parent. I don't recall just offhand the case name but it was before the amendments elevated meaningful relationship to a primary consideration.

For rebuttal of such argument one might start with perusal of  
Hacker & Hacker [2009] - finding that the children are not at risk from father but are at risk from mother because of her fears and lack of insight  finding that no evidence of family violence  finding that the children have taken on fears of mother  finding that mother failed to support the children's relationship with father

Muling & Muling [2007] - Enmeshed relationship with mother - not just risk of future psychological harm, but evidence of actual present psychological harm

From the recent controversy over a witness being allowed to wear a berkha veil might suggest some ideas for developing grounds of being denied procedural fairness by not being allowed to cross-examine the Mother face to face despite request.  One might also read "Re F:  Litigants  in Person  Guidelines  [2001]" for the ideal of how judges are supposed to hear self-represented cases.
4mydaughter said
So are you telling me that this decision was not made as a consequence of an application being filed?
 Yes there was no formal application filed,whatused to be form 7 and 8 andnow is a form 1. The judge at varoius times asked us to submitt minutes of orders we would likebut the carriage I believe was on the basis of the contravention application relevant to the Final Ordersmade as part of aFinalJudgement made in 2004 on a Form7 (or 8)application in 1999.
Problems posting

Thanks for the response SRLDAD, I will chase those references up. What also makes this more challenging is that this is to the Supreme Court of WA not the Full Bench of the family Court. These learned gentlemen don't very often see Family Court matters and thus how it is received is very unsettled. Will they be a fresh set of eyes looking at the matter with an enlightened scepticism and open mind or will they be loath to make decisions that contradict a colleague who has significant and specialist experience in this area.

There has been no family report prepared by a psychologist or psychiatrist. There have been a number of reports prepared on limited issues by a single expert, a psychologist who has simply met the parties. These reports are fraught with failings and one of the reasons I wanted to get this matter to a formal hearing was to address these. Fr example on the first report which was with respect to contact with myself, the SE found that there was no risk to the child from me however the management of my depression including medication could be an risk. When it was pointed out to him that the persons who had told him this risk existed had not lived with me or had dealings with me when I was under treatment for depression, that was a court discredited allegation and I had not been taking medication for 3 years, there was a dummy spit with the Single Expert suddenly discovering a new personality disorder to prevent contact for 7 years. This personality disorder had not been discovered in his previous tests nor any expert test since. A second report ignored allegations of sexual assault on the mother and attempted molestation of the child to indicate contact should not occur because the mother asserted I blamed the child for being late and thus could not care for her medical condition. The SE also asserted that the child's medical condition was unstable and so contact should not occur for two years until it was stable. The above was countered by the professor of the department providing medical care to the child writing a letter stating my daughters condition was stable and that contact was part of normal life and the child should have a normal life as well as evidence that I had undergone training satisfactorily. The third report was issued detailing an incident in great deal in a related matter in which it was alleged I was late, was bad tempered and the occasion was very unpleasant and used this to indicate contact should not occur. This was contradicted by a Child Protective Services Supervisor report who was supervising one of the other parties at the event stating that the mother had been late and that it was a very pleasant and enjoyable event. Later after this, the SE applied to court to be discharged and was.

The mental illness issue was never addressed by the SE.  He did however say the mother based upon his interview was capable of looking after the child.

What we do have and this was ignored in the Judgement, is a statement from a Psychiatrist (not a psychologist like the SE and as I understand it, a Psychiatrist ranks over a psychologist) who specialises in child psychiatry and protection and who is a very experienced and esteemed person who holds a senior position with respect to the government Child Protection services and hospital, assessing risk and dealing with and treating abused children. This person came in to this matter sideways so to speak, was given permission form the court to see the documentation and was specifically issued the various reports by the SE and other information by the Child Representative/Childs Lawyer etc. This person made a report and affidavit and specifically made reference to the fact that they were very concerned with this child in particular and that contact should be occurring for their best interests. This however was ignored in the Judgement and one of my grounds of appeal is that such a statement from such a person of experience and holding the position they do, needed further investigation and should have been explored further.

At no stage in these proceedings has the mothers mental health been specifically addressed not any contact been made with any health care providers to the mother. The only evidence of this is the mother's assertions.

With respect to the mothers assertions regarding contact making her unwell and facilitating the relationship, I have contact logs/commi8unication diaries from 2000-2003 showing the mother was capable of communicating with me via contact logs and things worked well. I can also get handover centre records that where subpoenaed showing handovers went Ok, mother accepted the handover and there were no problems with any party.

I am not sure what evidence you mean regarding meaningful relationship. I do have evidence from the short period of 6 months when the mother allowed contact of the child spending time with myself, her siblings and paternal family. Pictures, videos and affidavits by witnesses. etc.  We also have a report by FCWA expert (not the Single expert) who observed our contact on one court ordered occasion stating that the child was affectionate towards me, clearly cared for me and clearly loved me.


The trouble I have however is that none of that evidence has been presented in a formal court hearing with witnesses etc but instead has been by way of affidavit and letters and verbal discussion in 15 minutes. Instead the judge seems to have slammed the door on a formal hearing.

Thanks guys for your help, I have a better idea of what I should be doing now and perhaps more realistic expectations. In some way all this comes down to is plausible affirmation. When my daughter comes to me many years hence, I can at least say I did my best and this shows how much your dad loved you and thought you special.
there was a dummy spit with the Single Expert suddenly discovering a new personality disorder to prevent contact for 7 years. This personality disorder had not been discovered in his previous tests nor any expert test since.

'Personality Disorders' are not considered a 'mental illness' and 'Personality Disorders' don't just 'appear' or 'disappear' overnight. Who had the 'personality disorder'? The child or the mother?

4MYDAUGHTER
4mydaughter said
there was a dummy spit with the Single Expert suddenly discovering a new personality disorder to prevent contact for 7 years. This personality disorder had not been discovered in his previous tests nor any expert test since.
'Personality Disorders' are not considered a 'mental illness' and 'Personality Disorders' don't just 'appear' or 'disappear' overnight. Who had the 'personality disorder'? The child or the mother?

  Sorry for no response to this, for some reasons I am not getting notices when responses. The expert said that I had the personality disorder and this mean that I should not see the children until they were 14. His previous test and others completed failed to find any trace of this nor did the Psychetrist I was seeing find any evidence of this condiiton, however he insists it exists.
And what type of personality disorder do you allegedly have? Borderline? Paranoid?Narcissistic? Social? 

4MYDAUGHTER
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