Anderson and Jones - [2012] FMCAfam 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDERSON & JONES

[2012] FMCAfam 309

FAMILY LAW – Parenting – mother not participating in final hearing – mother suffering mental health issues – best interests of the child – whether final or interim orders more appropriate.

Family Law Act 1975, ss.60B, 60CC, 61DA

Applicant:

MR ANDERSON

Respondent:

MS JONES

File Number:

PAC 1056 of 2011

Judgment of:

Halligan FM

Hearing date:

7 March 2012

Date of Last Submission:

7 March 2012

Delivered at:

Parramatta

Delivered on:

7 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

King Cain Solicitors

Solicitors for the Respondent:

No Appearance

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of New South Wales

ORDERS

I therefore make the following orders:

Orders are made in accordance with paragraphs 1 to 5 of the Independent Children’s Lawyer’s Minute of Orders marked Exhibit D.
The appointment of the Independent Children’s Lawyer is continued for six months from the date of these orders.
The copy of any written undertaking of a supervisor, under paragraph 3 of Exhibit D, shall be provided to each of the parents and, for the next six months, to the Independent Children’s Lawyer.
The father’s solicitor shall cause a sealed copy of these orders to be served on the mother as soon as possible.
The mother may apply to set aside or vary these orders within 56 days after a sealed copy of them is served on her.
Both parties are at liberty to apply to define the mother’s time and communication with the child and the conditions under which the mother may spend time and communicate with the child.

IT IS NOTED that publication of this judgment under the pseudonym Anderson & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1056 of 2011

MR ANDERSON

Applicant

And

MS JONES

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings between the parents of a young child, [X], born [in] 2010. [X] is thus only just over two years of age.
This matter was listed for an undefended hearing. The mother, ultimately, has not appeared and is not represented. Her solicitors withdrew on 28 February this year. The mother herself is not present and is not participating in the hearing. There is no evidence before the Court to provide any clear explanation as to why that is so. There may be some inferences drawn from some of the evidence that I will allude to in a moment but, certainly, it would not seem to go so far as to indicate that the mother is unable to attend Court today.
What I just alluded to is that the mother, it would seem particularly since about June 2010, has suffered mental health issues. Earlier on in 2010 they seem to have been identified as post-natal depression and obsessive-compulsive disorder. Whether that remains the diagnosis is unclear, as is whether the depression the mother apparently has suffered only arose post-partum or whether it only arose in relation to subject child, [X], who is the youngest of, it would seem, five children the mother has. [X] is the only child of the father in these proceedings and the mother. There is some suggestion that the mother may have had difficulties with depression before [X]’s birth.
Be that as it may, the evidence, both in the father’s material and in the material that is in evidence as exhibits from Community Services and also from the [omitted] Health Network, suggests that throughout last year the mother has, to a greater or less extent, been fighting a losing battle against these conditions, to the extent that they have adversely impacted upon her capacity to care for the subject child and her next two youngest children, who are eleven and eight.
Ultimately, the position was reached last month where a care plan was voluntarily entered into by the mother, following the - and I use the term loosely - intervention of Community Services staff, under which those three children were to be cared for by members of the mother’s extended family and, in particular, by the children’s maternal aunt.
Subsequently, the child spent time with the father in accordance with orders of this Court that predated the care plan, and was returned into the care of the maternal grandfather, who the evidence suggests has done as much as he possibly can to support his daughter through her difficulties and in the care of her children, both financially and by physically being present for extended periods to assist her in the running of her household and the care of her children.
When the child again came into the care of the father he retained the child. The evidence suggests that, ultimately, that was with at least the acquiescence of the maternal grandfather. The evidence suggests that Community Services, which has never assumed any care or legal responsibility for this child, at no stage had any concerns about the father’s capacity to meet the child’s needs.
The position now reached would seem to be that at least at the present time, the tragedy for not only this child, but for his next eldest two half-siblings, is that through her mental condition the mother is simply unable to care for her children. It is a tragedy for the mother. It is a tragedy for her children. It is a tragedy for her extended family.
But in those circumstances I note the opinion of Dr R, the Court appointed expert, that if the mother were unable to care for [X], then the father should do so and that is exactly the position that now applies. It is in those circumstances that I am urged by both the father and the Independent Children’s Lawyer to make final orders, there being a very recent significant change of circumstances on the mother’s behalf, her solicitors having ceased to act, and her mental condition having deteriorated. It would seem that the mother may presently be experiencing a more acute episode of her condition, but in circumstances where there is no evidence to satisfy me that the mother is medically incapable or unable to attend Court today. These considerations of course go to questions of procedural fairness to the mother.
Another aspect going to procedural fairness is that one of the orders I am asked to make is that the father have sole parental responsibility for the child. That is new. The mother has not been put on notice that such an order would be sought.
Further I am asked to make final orders that the child live with the father. That is not new. But the father then seeks orders that the mother spend time with the child on such terms as the mother and the father may agree in writing, subject to certain provisions or conditions, and this is new. Those conditions are-
a)that the time take place in [Suburb A], or the [Suburb A] area;
b)that the time does not include overnight time until at least 1 September 2012; and
c)that the time is supervised by a person agreed between the parties and that person provide a written undertaking that they will remain present during the time the child spends with the mother, not permit the mother to discuss or attempt to discuss any issues in the proceedings in the presence of the child, contact the father and make arrangements to return the child if the mother’s behaviour towards the child and/or the supervisor is abusive and/or threatening, and finally not permit the mother to spend time with the child or continue to spend time with the child if the mother is visibly distressed and/or agitated in the presence of the child.
That is new because the father’s amended application most recently filed, whilst it sought live with and parental responsibility orders, simply proposed that the child spend such a time with the mother as the Court may determine. He thus, at no point until now, has articulated any particular arrangement of spending time.
There is, inferentially, a concession that there are aspects of the orders that I am asked to make today that may entail a denial of procedural fairness to the mother. That is because as part of these orders I am also asked to grant the mother liberty to apply to discharge or vary the orders within 56 days after service of a copy of them on her. As I understand it, that is a provision sought to be inserted to ensure the preservation of procedural fairness for the mother.
One other provision that I raised and which neither the Independent Children’s Lawyer nor the father sought to object to is that, in any event, in addition to that period of 56 days to apply generally, that both parents be given liberty, not limited by any time hereafter, to apply to the Court to define the mother’s time and communication with the child and the conditions under which the mother may spend time and communicate with the child.
I do not propose to go through the evidence in particular detail. I have already indicated that the evidence satisfies me that the mother’s mental health issues have significantly impacted upon her emotional availability for her children and her physical ability to meet their day-to-day needs. She has relied very heavily upon the assistance of her father and step-mother in the very least and, it would seem likely, others as well, to run her household in the most fundamental sense, including such things as providing food for the children and providing for their every day-to-day need.
The mother has had the assistance of mental health workers, including consultations with psychiatrists. It would seem that the point was reached last year where it was the opinion of her treating psychiatrist that the maternal grandfather should withdraw from the mother’s home, inferentially the suggestion being that she might have been using him as something of a crutch and relying upon him to do things which otherwise she ought to have been doing, had she been able to do so. And it would seem that that plan was put into affect.
Material within parts of subpoenaed records which is in evidence indicated that, in very short order, it became apparent that that it was not a case of the mother, inferentially, being a bit lazy and relying upon the assistance that was at hand, but rather of the mother being unable to take over and discharge the tasks that were being performed for her by the assistance that was at hand. There are also indications that the mother’s father and step-mother were despairing in their apparently futile attempts to enable the mother, through their support, to recover to the extent that she was able to, at least to an adequate extent care for her own children.
The material that I have read within the subpoenaed records speaks of great anguish and despair by the members of the mother’s family in on the one hand wishing to support their daughter/step-daughter/sister/etcetera, and on the other hand their real concern as to how long they can keep standing in the shoes of the mother and, even despite doing so, seeing these children’s welfare suffer. It is tragic, indeed, but the position now, of course, is that the subject child is in the care of the father. It would seem that the mother is not in a position, one way or another, to disagree with that. I am not in a position to say that she positively agrees with it - I simply do not know. And at least, in the immediate term, it would seem that it is necessary that the father assume the care of this child. That is not to suggest that he is not an eminently suitable carer for the child.
Even if the most immediate problems had not manifested themselves in the way that they have, it is clear that this problem has been festering for some considerable time, in fact since the middle of 2010.
In circumstances where I accept the evidence of Dr R, it being unchallenged, it would seem the mother has, at best, limited insight into the seriousness of her mental health issues. It seems - and perhaps it is partly a function of her mental health issues - the mother has been unreliable in attending appointments, accessing services and facilities to help her, both therapeutically and otherwise, and in adherence to medication regimes, and her condition has not resolved in a satisfactory sense. It has festered and, it would seem, has got worse over time, not better.
The evidence satisfies me that at the present time the mother is simply unable to meet the needs of [X] at a fairly fundamental level. I am satisfied she is not able to meet his emotional, intellectual or physical needs to an adequate extent. I am not suggesting that the mother has deliberately and wilfully neglected her child. This is a function of a medical condition, namely a mental health condition she suffers from on the evidence before me.
I am satisfied that the father is committed to his child, loves his child dearly as the child loves him - in fact the child loves both his parents dearly - and is fully able, particularly with the support of his extended family - he lives with his sister and he has his own mother in the [Suburb A] area, both of whom are keen to assist him to meet all of [X]’s needs – to meet the child’s physical, emotional and intellectual needs. He is also in a position to meet the child’s cultural needs in relation to the child’s aboriginal heritage traced through his father, not that I saw any evidence to suggest that the mother would not do so.
I am satisfied without going through the provisions of section 60CC shopping list fashion, but certainly having regard to the provisions of that section, the provisions of section 60B, and having regard to section 61DA, that it is in this child’s best interests that the child live with the father. As far as parental responsibility is concerned, there is certainly evidence in the father’s case to suggest at least, potentially, one incident of family violence by the mother upon him where - and this is unchallenged evidence which I must accept for present purposes - the father suggests that last year, on an occasion when he attended to pick up the child to spend time with the child under interim Court orders, the mother whilst holding the child punched him in the face and verbally abused him.
It may be said that the subjective elements of the statutory definition of family violence are not, unequivocally, addressed in the evidence of the father but I am satisfied in the circumstances that, even absent the subjective evidence concerning the father’s reaction to that behaviour, it is more likely than not that the child would have been made fearful and apprehensive for his welfare at his very young age by being exposed to this behaviour and I am satisfied, in the circumstances, that that incident amounted to family violence.
In those circumstances, under section 61DA, the rebuttable presumption as to equal shared parental responsibility does not arise.
For the reasons that I have given, including the fact that the mother at the moment would seem barely able, if in fact able, to meet her own needs much less the needs of the children, that it is appropriate that the father have sole parental responsibility.
I also make that decision having regard to the father’s evidence in relation to the nature, content and number of telephone and text message communications he has received at various times from the mother. I am concerned - and again this may be partly a function of her mental health issues - that to provide for equal shared parental responsibility may simply provide an opportunity and encouragement to the mother to engage in further harassing communications, as well as abusive communications to the father, which I am satisfied would not be in the child’s best interests.
That then, brings us to the question of the child’s relationship with the mother, particularly the primary considerations of the benefit to the child of a meaningful relationship with both parents, balanced on the other hand with the need to protect the child from exposure to abuse, neglect or family violence. I have indicated an incident of family violence and I have indicated that the mother on other occasions has been abusive of the father, on some of those occasions verbally and in the presence of the child. It is clearly not in the child’s best interests to be exposed to such behaviour. I am not satisfied that there is a risk of abuse in the sense of any intentional visiting of harm upon the child. But I am satisfied that this child’s needs have been neglected by the mother as a function of her mental health, and there is a risk of that occurring in the future.
It certainly appears on the evidence that the severity of the mother’s symptoms may have waxed and waned to some extent since mid 2010. It would seem that they have always been present, to some extent. The extent to which they were present seemed not to have been disclosed and manifest until very recently, either to the father or the Independent Children’s Lawyer. Perhaps as a function of the mother’s lack of insight - she not being here and not being cross-examined, I am not prepared to say it was a function of deliberate dishonesty - the extent of her difficulty in coping was not disclosed by her to the Court Expert and it certainly was not disclosed to the father or to the Independent Children’s Lawyer.
In those circumstances, the Court must clearly have some concern with the most recent exacerbation of the mother’s symptoms, about the welfare of the child with the mother. Nonetheless, it is clear and unarguable that this child loves his mother dearly and I am satisfied that, more likely than not, he would be missing his mother as in fact he would be missing his half-siblings. Of course, spending time with the mother at the moment is not likely to provide the child any opportunity guaranteed to interact with his siblings as they are not in the mother’s care either.
The difficulty, of course, is to know what the mother, in light of her condition and any treatment she may be receiving for it, is able to do in relation to pursuing a relationship with the child and enabling him to pursue one with her. For example, one of the orders I am asked to make is to limit the mother’s time with the child to the [Suburb A] area. That pre-supposes that the mother is able to travel from the [Suburb B] area where she has resided, to the [Suburb A] area where the father now resides. I note that the record suggests that the mother historically has been on a major tranquillising medication, Largactil, as well as medication to manage her anxiety. What her current medication regime might be is unknown. What effect that might have on her ability to travel any significant distance, therefore, is unknown.
But on the other hand I must look at the interests of the child and in the same way that the mother was concerned to limit the father’s time with the child generally to the [Suburb B] area so that the child would not have to travel between that area and [Suburb A], that being her position in these proceedings previously, I must similarly have some concerns about an order that would require the child at this young age to travel with any regularity or frequency to and fro between [Suburb A] and the [Suburb B] area to spend time with the mother. To that extent, I am satisfied on the evidence I have it at the moment, that it is appropriate to place that geographic restriction upon the mother’s time.
Similarly, the restriction preventing overnight time until at least 1 September 2012 would provide a period of time when, hopefully, the mother may be able to undertake treatment, have an opportunity for a relationship with her son and he with her, and not to burden the mother unduly with the obligations of the care of a young child, which has clearly been something she has not been able to manage in the recent past. The provision in relation to supervision, too, I am satisfied is appropriate in this case because of my findings, particularly in relation to the risk of this child being neglected in the care of the mother.

It is to be earnestly hoped that the mother may gain some better insight, understanding and personal awareness of the extent of her mental health issues, which may then lead her to greater reliability, hopefully, in adhering to medication regimens and to obtaining and undertaking appropriate treatment and support services. There is, for example in the material from Community Services, an indication that - albeit rather belatedly in the timeline in this case - workers from the Brighter Futures program sought to engage with the mother and she simply would not engage with them. There are support facilities there that would help the mother and thus help the child, but unless the mother is prepared to engage consistently with them they are of no use. So, as I say, I am satisfied on the evidence that this child’s welfare and best interests demand the mother’s time be supervised in the way that is suggested and with the conditions that are proposed in the minute of order that I have.
The other potentially concerning aspect of the spending time arrangement that is put forward is the part of it which, in fact, gives the father an absolute right of veto over any time that the mother might spend with the child. Absent an agreement in writing between the parents, there would be no enforceable obligation for the father to provide the child to spend time with the mother, even if she can come up with an appropriate supervisor and seeks, at least until September 2012, no more than daytime only visits in the [Suburb A] area. It has been put to me on behalf of the father that the father should be relied upon to place the interests of this child first, that he understands the needs of the child, consistent with ensuring the child’s safety and welfare, to be able to have a relationship with his mother and that he would not unreasonably, inferentially by reference to the child’s best interests, withhold his agreement to a request from the mother to spend time with the child.
I see no evidence that would contradict that proposition. The father himself has expressed in his affidavit a wish that the mother get better to the point where she can be better involved in the care of the child. This was before the most recent crisis in the mother’s mental health issues. And certainly the evidence suggests - albeit there has been no active contradictor participating in these proceedings - that the father has been prepared to communicate with members of the mother’s extended family and there is reference, certainly, to a communication with the maternal grandfather in relation to at least arranging opportunities for telephone communication between the subject child and his immediately next two elder half-siblings. I did not see any reference in that material to an opportunity for him to spend time with them. That is not to say that that is something that the father would not agree to and I would strongly encourage both the father and the maternal grandfather to look to opportunities for [X] and his elder half-siblings to have some time together and not just rely upon telephone communication.
The experience of all three children clearly must have been a shock to them, if not traumatic. They have been wrenched from the arrangements previously that they were familiar with, despite shortcomings of those arrangements and, in fact, one of [X]'s elder half-siblings - all of ten or 11 years of age - would seem to have adopted something of a parenting role for [X]. It would be of assistance, I think, for both [X] and his elder half-siblings if sooner, rather than later, there was some opportunity for them to interact but ultimately the only child about whom I can be directly concerned here is [X].
Ultimately, in this particular case, and subject to liberty to both parents unlimited by time to apply for further definition of the mother’s time with [X], I am satisfied that the order proposed should be made today as being in [X]’s best interests.
I have considered an alternative of making any or all of these orders on an interim, rather than a final, basis. I have not done so because I do not consider it to be in [X]’s best interests. That is because these proceedings have been ongoing now for a considerable period of time. They have engendered a degree of uncertainty in relation to [X]’s care arrangements. Quite independently of that, [X]’s care arrangements have not been stable or consistent because of the mother’s mental health issues over the last many months.
It would seem that [X] has experienced a number of carers when the mother has not been able to attend to his care herself. I make no criticism of those other people stepping in and seeking to help and provide for [X]. They are to be commended and admired for doing so. But the fact remains that for such a young child, he has received what may well be described, at all of two years and one months of age, a chaotic upbringing to this point. This is a critical stage in the child’s development. It is the stage at which - and up until about four or five - given the opportunity he can form those fundamental strong parental attachments that are so important to the child’s later development.
With the mother’s emotional unavailability for the child and, further, with the various carers who have had to step in on behalf of the mother that this child has experienced, whilst the child dearly loves both his parents, I have some real concern that he has not been given an opportunity to form a close attachment to either of his parents. And, in my view, it is imperative at this point that some stability be ensured for this child’s upbringing and I am satisfied that to make an interim order is inimical to that goal.
So far as the spending time arrangements are concerned, again, it would be open to the Court to make final parental responsibility and live with orders but only interim spending time with orders. I am not satisfied that that option is preferable for the child’s best interests either. There is evidence to suggest that what ever other stressors may be operating and exacerbating the mother’s condition, one has been these pending proceedings or, more correctly, their resolution through a final hearing. There is evidence from which it can be inferred that the stress of these ongoing proceedings has been one of those matters that has contributed to the mother’s deteriorated condition. I certainly accept that it is quite likely that making the orders I am asked to make may, as it were, realise the mother’s worst fears of losing the care of [X] and itself will be a major stressor and may itself have a significant adverse effect upon the mother.
Subject to that, putting in place arrangements which, on the face of them, are as final as they can be, subject to the leave that I propose to reserve, may perhaps enable the mother to process the result of these proceedings and, one might hope, move towards a recovery to the extent to which she can. To simply leave a significant part of these proceedings unresolved, I am concerned, would not necessarily be best for the mother’s recovery. Prolonging the period of time before the mother may achieve some recovery is not in this child’s best interests because it puts off ever longer any prospect of the mother resuming a more significant involvement with the child. If the mother’s mental health issues can be stabilised, if not fully resolved, then this child has much to benefit from a far more intensive relationship with the mother than appears currently available or realistic.
It is for these reasons that I am satisfied, subject to the protections that I have already alluded to, that I should make final orders at this stage.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date: 17 April 2012