Mother dysfunctional, change of care

Mother dysfunctional, change of care

Paynes & Friswell [2016] FCCA 819 (15 April 2016)

FAMILY LAW – Interim Parenting Orders – risk assessment exercise – where least risk for child is to reverse long-standing care arrangement by mother – where mother is in a violent, dysfunctional relationship and suffers mental health issues.
The following is annotated. For full case:
  1. It is important for the Court to record in these reasons its appreciation for the very thoughtful and comprehensive case outlines provided on behalf of the Applicant Father and Respondent Mother, and the very thorough aide-mémoire prepared by the Independent Children’s Lawyer. It would simply not be possible for this Court to undertake the very difficult exercise it must undertake in this matter and to deliver reasons for judgment in a timely fashion, having regard to the very significant volume of the evidence, but for the careful and considered approach adopted by both the solicitors and Counsel for the parties and the Independent Children’s Lawyer with a view to assisting the Court in its difficult task. The Father’s Counsel’s case outline, including the summary of documents produced on subpoena and tendered in evidence, is reproduced in the first schedule to these reasons.
  2. The Mother’s Counsel’s case outline, including the detailed chronology and summary submissions about the relevant s.60CC considerations, is reproduced in the second schedule to these reasons.
  3. The Independent Children’s Lawyer’s aide-mémoire entitled “Areas of Concern for the Child in the Care of the Mother”, together with file notes, is reproduced in the third schedule to these reasons.
  4. As it turns out, the Court’s own inspection and review of the documents produced on subpoena is entirely consistent with the summary and notes that had been prepared on behalf of the Father and Independent Children’s Lawyer.

The Arguments Briefly Summarised

  1. The Father’s case was that, in essence, the concerns about risks of harm to X in the Mother’s care were both serious and profound, particularly when understood in the context of what was asserted to be the Mother’s active non-disclosure, and indeed concealment, of the relevant facts about the nature and extent of her violent relationship with her husband and the consequent impacts on her mental and physical health, as well as the consequential risks to X. Of particular concern was the Mother’s systematic minimisation of these matters in her affidavit sworn 22 December 2015 in support of her substantive response.
  2. On behalf of the Father, therefore, it was asserted that any objective view of the evidence would give rise to serious concerns about the Mother’s mental health, about her failure to protect X from the consequences of a clearly violent, dysfunctional relationship with the Mother’s husband, and a complete lack of insight into X’s needs.
  3. On behalf of the Mother, her Counsel acknowledged the non-disclosure inherent in the Mother’s affidavit of 22 December 2015, but sought to explain this in the context of the Mother’s violent relationship with her partner, her previous experience of sexual abuse, and the consequential mental health pressures that this placed on the Mother. Her case emphasised that whatever concerns might have existed in the past about the Mother protecting X from the consequences of a violent relationship, she was now free of this relationship and her mental health was recovering.
  4. The Mother’s case emphasised that X’s primary attachment was to her and that living with X’s father on a full-time basis would be a considerable change for X and one that she might not cope with. The Mother’s Counsel explained the Mother’s life has been on an emotional rollercoaster in the past but that now, she was stable and she was well-engaged in the services available to assist her.
  5. The Independent Children’s Lawyer’s submission focused on the concerns that the Court would have about the Mother’s reliability, not just as a witness but as a parent to X who has both the capacity and the insight to understand her needs and adequately protect her. The history, nature and extent of the Mother’s relationship with Mr A raised serious concerns about the Mother’s parenting capacity. A further concern was the number of absences that X had experienced from school in 2015, that is 29 full days and 17 partial absences – of which 32 were unjustified. The Court would be concerned, asserted the Independent Children’s Lawyer, about the evidence of the Mother and X’s disappearance between 2 and 6 November 2015, when both were listed as missing persons. The Court would be concerned about the Mother’s lack of willingness to participate in the Apprehended Violence Order proceedings against her husband and the relatively recent representations by the Mother that she now understood, for the first time, the inappropriateness of her relationship with Mr A. Overlaid with this was the disconcerting evidence about the Mother’s mental health, and her very selective disclosure to the Court about these issues.
  6. The Independent Children’s Lawyer acknowledged that, in supporting the Father’s proposal that X live with the Father and spend supervised time with the Mother, this was a very significant change in X’s life. However, the Independent Children’s Lawyer submitted, having regard to the risk issues, the uncertainty about the Mother’s mental health and, indeed, whether the mother had in actuality disengaged from the violent relationship with her husband, the Father’s proposal was, for the time being, the one that most closely met X’s best interests.


  1. The objective evidence in this case is truly disconcerting, both in a quantitative and qualitative sense. The Court can do no better, in these reasons, than simply to refer to the synopsis of the evidence contained in the notes found as part of the first and third schedule to these reasons for judgment. The Mother presents as having a profoundly insecure mental health. She clearly has had a difficult past. Her relationship with Mr A was dysfunctional on many levels, including the violent nature of it. The Mother has contemplated self-harm. There are clearly other stressors in her life, other than the violent relationship with her husband, and the present proceedings. X is clearly conscious about the dysfunctional relationship between her mother, and her husband. The CatholicCare records record that on 9 November 2015 X expressed feeling nervous, anxious, scared, worried about going back to class and the playground, feelings that she linked to experiences at home. Even the Mother’s own psychologist described the Mother, on 14 December 2015, as being “in the middle of a mental health crisis with anxiety and stress through the roof”. The records of the violence perpetrated by her husband against the Mother indicates that it included physical violence, but suggest it was also of the coercive and controlling type. The Mother’s failure to protect both herself, and X, from the violent relationship was manifested in her lack of cooperation in prosecuting an Apprehended Violence Order against her husband. As at 14 November 2015 the New South Wales Police records suggest that the Mother had no intention of living anywhere but with her husband, who was clearly the perpetrator of violence against her.
  2. The above is merely a summary, indeed an inadequate summary, of the evidence before the Court.
  3. Even on an interim basis the Court is entitled to find that the evidence before it overwhelmingly indicates there is a risk of harm to X if she continues to be in her mother’s care. Even if one were to compartmentalise the family violence, from the mental health issues, on either compartment the conclusion would be the same, that is, there is an unacceptable risk of harm if X continues to live in her mother’s care. In these circumstances, whilst the Court clearly recognises the disruption to X’s life that is caused by removing her from her acknowledged primary carer, the risk issue prevails. X should forthwith go into her father’s care.
  4. In circumstances where there is such fluidity, and uncertainty, about the Mother’s circumstances, including her mental health and consequential parenting capacity, the only possible option, emphasising again at this stage, is that she spend supervised time with her mother. The Father proposed that it either be at CatholicCare, or another agreed supervision service. The Court takes judicial notice of the delays that currently exist in accessing the CatholicCare service, and thus encourages the parents, and the Independent Children’s Lawyer, to explore other options.
  5. Pending further Order, the Orders will be in terms of those sought by the Father in his Application in a Case, and supported by the Independent Children’s Lawyer. The Orders are to be implemented forthwith, meaning in effect from after school on the day on which these reasons for judgment are delivered.

It is the father’s contention that the child continuing to live with the mother maintains a situation wherein the child is exposed to unacceptable risk of harm to her emotional, physical and psychological well–being. The father is concerned that the mother is in an extremely dysfunctional relationship and that the mental health of herself and her husband is such that there is a tangible risk that they will continue to act in ways incompatible with providing the child with the safety and security she needs.

There has been at least one instance of serious violence to the mother by her husband. Despite that the mother continued to place the child in the care and company of that husband. There have been times that the child has been in the exclusive care of the husband, most worryingly when the mother was in custody, arrested for breaching her bail undertaking to appear at Court as a witness against her husband. The mother’s conduct throughout the entire episode reveals a contempt for Court proceedings and protective orders.

There has, on the mother’s original account, both contemporaneously to the police, and in her original affidavit to this Court, been serious physical violence by her husband to her, resulting in injuries. Since making those disclosures the mother has dedicated herself to retracting, minimising and ultimately shouldering responsibility for, the violence. Her focus has been on her husband and to a lesser extent herself. She has not demonstrated a scintilla of insight into the ramifications for a young girl of growing up in an environment of domestic violence. Her ambition, and focus remains to have her husband resume living with her and the child, with no proposed corrective or remedial response. Rather, she seeks to assure the Court, and betrays her own belief, that the violence was provoked, uncharacteristic and of no great moment.

The mother has conducted herself in these, (and other) proceedings in ways that are incompatible with her having any appreciation of the risk that she exposes herself and the child to. Further, the mother has treated the Courts as mere obstacles to her continuing to pursue choices and wishes that are not child focused but rather have as their objective preservation and maintenance of her current relationship, regardless of the cost.

Consistent with this attitude to the proceedings the mother has withheld crucial information from the Courts, misrepresented situations and cynically tried to create the impression of finally “coming clean” to the Court, once independent subpoena material revealed the true position, when in reality she is attempting to cloak and mask that reality with half-truths, minimisations and obfuscations.

2. The Violent Incident
On 20 June 2015 the mother was assaulted by her husband. In her most recent affidavit she tells the Court that the incident consisted only of “raised voices” and herself and her husband “losing their temper” and “throwing items at each other”, resulting in a wound to her that required 8 stitches. She further claims that she “exaggerated” when she told the police that she was punched and kicked as she wanted to “cause trouble” for her husband as retaliation. Obviously, if this were the true version the Court would be very concerned about the cavalier attitude to honesty displayed. However, prior and contemporaneous versions cast a pall of doubt over this version.

2. Prior Inconsistent Statements to this Court
The mother’s recent claim, that she was motivated by spite and revenge to exaggerate her husband’s violence is irreconcilable with her first affidavit. In that evidence she speaks of being “pushed” and “pressured” at a time she was “very vulnerable” (15) into giving a statement, both by her mother who was worried about the child, and the police who were concerned for both their safety (MA1 12-15).

3. Lack of candour to the Court
The mother’s reluctance to give a statement hardened into a determination to not give evidence against her husband. The mother twice failed to attend court to give evidence in relation to her husband’s violence. Both times she defied a subpoena to attend and the second time she broke an undertaking given to the Court in order to secure bail for herself following her second non-appearance. In her recent affidavit the mother explains this as her lacking the strength to attend and being especially vulnerable (para 25). This recent explanation is irreconcilable with her proffered explanation in her original affidavit. That explanation is simply that she was determined to thwart the Court’s processes by not attending and chose repeatedly to not attend. “I made the decision to refuse to attend court and went to a friend’s house for the day” (20MA1). Taken into custody on a warrant the mother then is comfortable that the child spends the night with the husband; a man who on her version, reacts to stressful or upsetting occurrences with violence. In order to secure bail the mother undertakes to the Court that she will attend the proceedings, an undertaking she apparently had no intention of honouring ”On Sunday 1 November 2015 I decided not to attend court again and I went to stay with a family member in Sydney. (21MA1) The cavalier attitude the mother displayed to her obligations and undertakings to the Court were mirrored in her disregard for the child, who she pulled from a week’s school, and the father who was enormously distressed and fearful for the well-being of his daughter who disappeared with her mother with no thought of reassuring him she was safe and well. The blithe attitude toward pulling the child into a melodramatic, unsettling unseemly venture is concerning, “I was so distressed I decided to just get away and try and relax. I decided to take X and I to (omitted) for some time out. I did not take my phone with me as I had left it at work on Sunday” (21MA1).

The true position is likely that the mother is seeking to explain the inexplicable, i.e. she is trying to explain fleeing giving evidence in a way that conceals her true reason, that being to ensure her husband was not held accountable for his assault on her.
Similarly, the mother also speaks of regretting ever having disclosed the assault to the police and having done so only because of her mother and police pressure to act to protect herself and the child (paras 12-15 MA1).
Finally, the mother, seemingly without any appreciation of the gravity or inappropriateness of her conduct, casually reveals in her first affidavit to this Court, that she attempted to influence her mother to also not attend Court and give evidence against her husband (20MA1). The profound lack of candour and respect that she displays to Court processes is jarring and concerning.

It is notable that whilst this first affidavit strives to explain, minimise and move past the violent actions of her husband there is no reference to the claim recently made that the violence was mutual and not in the form of physical blows. That version, referred to in the latest affidavit, seems a recent invention. So originally, the Court has the mother saying “Mr A had a break down and assaulted me……completely out of character……….never done anything like this before” (9MA1).Notwithstanding a compulsion to “understand why he acted the way he did”(18MA1), and provision of a litany of rationalisations as to why he did, at no point in her first affidavit does the mother put forward the new explanation, that is that he threw things at her because she did so to him and that her other claims were, as she now asks the Court to believe, exaggerations, not the acts of a man having a “breakdown” as she first claimed. It is not until her latest affidavit, of 8 March 2016 that the mother first makes that claim. It is noteworthy that by the time she makes that claim she has completely run into the ground her first position of securing her husband’s acquittal by refusing to attend Court. Placed in a situation where she is unable to avoid giving evidence, she then recants her original claim and gives a potentially inculpatory version.

In light of this extraordinary and unfortunate history of disregard for the telling of the truth in Court proceedings, there is little basis for accepting that this is then a mother who is finally prepared to tell the truth about the interactions in her household.

4. Presence of Mental health Issues in Mother’s Household

In detailing the events of June 2015 in her first affidavit the mother discloses her preoccupation with the emotional state of her husband and her determination to preserve the marriage, thus leaving her supportive family to reunite with him and travel to Sydney together for a weekend away, clearly leaving behind a devastated and disbelieving maternal grandmother (18). That preoccupation continues in her latest affidavit. However, by the time of deposing that document the mother has become aware of the exposure of extremely concerning conduct on her part, as well as her husbands. Thus in attempting to address the issues that naturally arise from documented instances of self harm, suicidal ideation and involuntary hospitalisation revealed through subpoena the mother begins to speak of not only her husband having “breakdowns” (as she did in her first affidavit), but now also, herself. Thus the previously concealed 7 December 2015 conduct and hospitalisation was an “emotional breakdown” (11MA2). So too, the events of 23 December were an “emotional melt down” (16MA2).

The events and issue that the mother finally acknowledges are of a nature where the Court, and parties, would have compassion for her. However, that is not the primary focus or concern here. The ultimate disclosure of these profound issues and difficulties, and the inappropriate and highly concerning conduct they apparently drive the mother, and her husband, to raises the serious concern that she is unable, because of psychological or other issues, to parent in an appropriately child focused manner. In particular, the unfortunate reality, that the mother lacks insight into the need and indeed sufficient motivation to place her daughter’s psychological, emotional and physical well- being above all other considerations has led to a situation where the child has been living in a household characterised by violence, frightening outbursts, highly destructive behaviour and self- harming reactiveness. This is a situation that is not safe for the child. Unfortunately, the mother’s refusal to accept or acknowledge that provides no basis for the Court to be satisfied that she will act to provide appropriate and necessary protective measures in the future. There is a real risk that the behaviour disclosed in the subpoenaed material, being largely unaddressed and therefore unresolved, will continue to characterise the mother’s household. In that unfortunate circumstance, the child cannot remain living there.
The unfortunate history of the mother in these, and indeed other, proceedings, of a complete lack of candour and manifest untruths is such that the Court is not able to accept her as a witness of truth. Moreover the Court would be unable to dispel concerns that she does not have the well-being of the child as her paramount concern, or even focus, in providing evidence to the Court.

The subpoenaed material supports the high level of concern the father has in relation to the possibility that the child will continue to be exposed to domestic violence or uncontrolled, distressing interactions between the mother and her husband, or the mother and others. The mother’s recent claims of candour and successful treatment and remedial steps are hard to accept against the background of her persistent concealment and minimisation of the true situation. The concern that the mother is simply trying to gloss over serious issues, that she initially sought to conceal from the Court, is hard to dispel in all the circumstances of this case. At the very least, the profundity of the difficulties that the mother finally acknowledges are incompatible with her assurances that the child has been completely shielded from their consequences. Similarly the bare assertion that sufficient “steps to rectify the emotional and mental welfare so that I can continue to make good decisions for myself and X” have been taken currently seems platitudinous and unconvincing in light of the serious concerns the mother’s recent conduct raises.

Schedule 3

Aide-Memoire and File Notes

  1. Mother appears to be the victim of family violence from her husband Mr A (CDC Memo). Subpoenaed material indicates past violence by Mr A including assaults and criminal behaviour;
  2. The mother says that the charges against her husband Mr A were as a result of her lying to the Police about what occurred (CDC Memo);
  3. The mother advised the Family Consultant that she is experiencing depression and anxiety and is currently medicated and receiving counselling each fortnight. She had suicidal thoughts in December 2015 (CDC Memo);
  4. The father has concerns about the mother’s possible use of illicit drugs and would like her to undergo drug testing (CDC Memo);
  5. The father believes that the child X missed 39 days of school in 2015 and that the school has raised concerns about X’s home environment with her mother (CDC Memo);
  6. Mr A (Mr A) admitted to the father on 21/06/2015 that he had hurt the mother Ms Friswell and had punched her father Ms L (Par 22 Affidavit sworn 2/12/2015). The mother complained that Mr A had dragged her across the yard by her hair and throwing her into things (Par 23). The mother said that Mr A tried to kill himself in (country omitted) (Par 25);
  7. The mother appears to have gone missing with X from about 2/11/2015 to 6/11/2015 when she presented herself to the Police with X. The Police posted a missing person’s report about Ms Friswell and X on the television on 5/11 and subsequently on the Police Facebook but without the knowledge of the father (Pars 43-57 of father’s Affidavit);
  8. The mother was arrested on 6/11/2015 as she had missed attending Court to give evidence in the AVO against Mr A (Par 58). She was initially refused bail. The child X was released into Mr A’s care even though there was an AVO protecting her against him (Par 60);
  9. On 9/11/15 the mother requested a Police welfare check on X whilst in the care of the father (Par 73);
  10. 12/11/15 the mother sent a text message advising that the school had been notified that the father and his family were not able to collect X from school (Par 76-77). When the father attended the school the mother and Mr A were there to stop him from collecting X;
  11. Saturday 14/11/2015 the father telephoned DOCS to report his concerns about X (Par 84);
  12. Charges against Mr A were to be heard in January 2016 at Port Kembla Local Court (Par 108);
  13. Police subpoenaed material indicates that the mother was admitted to hospital on 7/12/2015 because of her behaviour. It appears that she was probably admitted to (omitted) Hospital as there are no notes from (omitted) Hospital (Par 14-15 sworn 18/02/2016);
  14. (omitted) Hospital notes 24/12/2015 indicate the mother attended the hospital following an overdose of an unknown quantity of Diazepam (Par 22).
  15. Police Subpoenaed material indicates the mother was served with a Personal Apprehended Violence Order on 7/12/2015 (Par 23).


9 March 2016

Mother’s Affidavit sworn 8/03/2016

Par 3- Mother says X was not present at the home when the DV incident occurred. X would have seen the injuries to the mother and perhaps the blood on her at a later time.

Par 7 – Mother admits being hysterical on 7/12/2015 when she was taken to casualty at (omitted) Hospital for a period of 4 hours

Par 11 – on 7/12/2015 she admits she lost focus and had an emotional breakdown after being served with a private AVO

Par 13 – Mother says she was under significant stress from Dec 2014 with issues of her father-in-law passing away, a miscarriage, a dramatic downturn in health of her mother-in-law and going almost bankrupt in the business

Par 15 – On 7/12/2015 the mother punched a window in the bathroom out of frustration and was taken to (omitted) Hospital by ambulance.

Par 16 – She had an emotional meltdown on 23/12/2015 and admitted herself voluntarily to (omitted) Hospital.

Par 20 – She is currently seeing Dr V for depression and anxiety and attending a psychologist Ms R each fortnight

Par 23 – She is aware that Mr A has a criminal history and that it was alleged that he took drugs. She has never seen him take drugs

Par 24- She acknowledges arguing with Mr A and they have raised their voices at each other. She tried to make sure it was not in the presence of X.

Par 25 – She acknowledges being on an emotional rollercoaster being agitated and upset. At the Hearing for the AVO she gave evidence about getting into a screaming match with Mr A when they both lost their temper throwing things at each other in the presence of three friends. She received an injury to her back which required 8 stitches

Par 27, 29 and 32 – She says that Mr A has not been in contact with X. This does not accord with the school records which indicate Mr A had been delivering X to school.

Par 34 – Mother acknowledges that she had suicidal thoughts but now does not.
Par 35 – On 24/12 she took herself to (omitted) hospital as she had taken Diazepam and continued taking them thereby overdosing

Par 37 – She acknowledges attending hospital with suicidal thoughts.

Par 38 – She says X has had no contact with Mr A. Again, this does not accord with school records.

Par 47 – She says that X is progressing well at school. She offers no explanation why X has missed so many days at school in 2015.


9 March 2016

Subpoena Notes

(omitted) Primary School

Records indicated 2015 total partial absences 17 and total whole absences 39.

There appears to be 32 full days with unjustified or sick days.

Typed written records and meetings and other attendances

9/11/2015 – X indicated that she was very scared at home because her mum gets angry really quickly and that she is scared because her mum and Mr A fight all the time

13/11/2015 – Mr A was in the playground with Ms Friswell who began to get very agitated and angry

17/11/2015 – X arrived at school with Mr Paynes and was in good spirits and seemed happy

25-27/11/2015 – X not at school. Mother Ms Friswell was aggressive on the phone using an angry tone

(omitted) Medical and Dental Centre

31/08/2015 – Mother attended crying a lot wanting to get counselling. She had been subject to DV. He hit her in June with deep laceration on her back. Contacted the Dr for depression/DV. Mental healthcare assessment created.


Set out criminal history for Mr A and details particularly of incident on 20/06/2015

(omitted) Medical Services

Mother attended 6/01/2016

Still requesting something for being restless and agitated. Seemed to be picking on her skin and scalp. Side effects of medication discussed. Reason for contact with Dr. anxiety/depression. Test done and result was severe depression. Notes dated 18/01/2016 of a meltdown and also took all her tablets with friend taking her to hospital. Mental health treatment plan produced.

(omitted) Hospital

Treatment of Ms Friswell 24/12/2015 for overdose of unknown quantity of Diazepam. No support from her partner Mr A as he is on an AVO. She declined voluntary admission to the hospital.

20/06/2015 Ms Friswell attended with complaint of alleged assault, kicked on her face, 8cm laceration in her left lower back requiring 8 stitches.


  1. Does not annex copy of Apprehended Violence Application or charges against Mr A to her Affidavit;
  2. Does not advise the outcome of Hearing against Mr A ( though it was to be in January,2016);
  3. Does not refer to depression and anxiety which is currently medicated and which she raised with the Family Consultant in the CDC;
  4. Does not mention X missing 39 days of school in 2015;
  5. Does not advise the outcome of her being arrested on two occasions for failing to attend Court;
  6. Does not mention her request to have a Police welfare check carried out on the father;
  7. She makes no mention of being admitted to (omitted) hospital or (omitted) hospital as referred to in the father’s Affidavit;
  8. She does not mention attending (omitted) hospital for an overdose as alleged by the father (later on 24/12/2015);
  9. Does not mention an Apprehended Personal Violence Order the husband alleges was served on her on 7/12/2015.


Related articles

Your passionate team of family lawyers

Let’s work out your next steps together. Book your free consultation to start the process.