Anderson and Jones - [2011] FMCAfam 519

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDERSON & JONES

[2011] FMCAfam 519

FAMILY LAW – Interim parenting arrangements – 14 month old child – issues about effect of mother's mental health on her capacity to care for child – parties living apart geographically.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MR ANDERSON

Respondent:

MS JONES

File Number:

PAC 1056 of 2011

Judgment of:

Halligan FM

Hearing date:

25 March 2011

Date of Last Submission:

25 March 2011

Delivered at:

Parramatta

Delivered on:

25 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Heazlewood

Solicitors for the Applicant:

King Cain Solicitors

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Watts McCray

ORDERS

I make the following orders:

The proceedings are adjourned for mention before me at 9.30 am on

13 May 2011.
Until the resolution of the current interim applications. the parents shall have equal shared parental responsibility for the child, [X], born [in] 2010 and the child shall live with the mother.
Until the resolution of the current interim applications, the father shall spend time with the child in accordance with paragraphs 1(a) to (e), exhibit D, subject to inserting in paragraph 1(c) after the words “the Lake Macquarie area” the words “or the Central Coast area.”
The parties’ legal representatives shall notify the Legal Aid Commission of these orders as soon as possible.

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 concerning a child who is not quite

14 months of age, [X], born [in] 2010.
The parties are [X]’s parents. The father is 38, the mother 42. There is no evidence to suggest that the father has any other children. The mother has, it seems, four other children, a 19 year old son and daughters aged 15, 10 and 8. The youngest two of those, the 10 and 8 year olds, were members of the parties’ household whilst they co-habited, which they did between July 2009 and 5 November 2010. The mother’s evidence suggests that her second eldest child, the oldest daughter, regularly spent time with her whilst primarily living with her father during the parties’ co-habitation.
Following the parties’ separation, there was an agreement initially made between the maternal grandfather and the father but in which the mother clearly acquiesced, whereby [X] would be cared for on an equal time fortnight-about basis. Both parties now contend that that was an inappropriate arrangement for a child of this age. Nonetheless they acquiesced in it and it continued from November through until February this year.
The mother then sought to change it so that the child lived primarily with her and spent time with the father on alternate weekends. The father rejected that proposal and instead insisted upon a resumption of the fortnight-about equal time arrangement that he now concedes was inappropriate. He did not suggest on the evidence before me an alternate, more appropriate arrangement, yet when the mother refused to reinstate what he himself says is an inappropriate care arrangement for this child, he then instituted proceedings for parenting orders seeking that the child live with him and spend time with the mother.
I should add at this stage that any comments that I may make querying the state of either party’s case is not necessarily to be taken as a criticism of the party. This is very early stages in the proceedings.
When the matter came before me two days ago, I ordered the appointment of an Independent Children’s Lawyer. The reason the matter is back before me today is because I was pressed to make orders to govern the parenting for this child until the Independent Children’s Lawyer could become involved and there was no time available two days ago to hear that application. And that is what I am attempting to do today, to hear the applications of the parties as to the short-term care arrangements until the Independent Children’s Lawyer can become involved and, if necessary, the matter be listed for interim determination.
The orders that I am asked to make today on behalf of the father are that the child live with him in the Central West of New South Wales and spend time with the mother, who at all relevant times has lived in the Central Coast, or Lake Macquarie area more correctly. The father’s primary proposal is that the child live with him and spend time with the mother each weekend commencing 8 April from 5 pm Friday to 5 pm Sunday, provided that the mother shall be continuously supervised by her stepmother, Ms J, or her father, Mr J, or by a Ms W, who is not mentioned anywhere in the evidence but I am told is the child’s maternal aunt.
The father proposes that changeovers occur where he currently resides, in the Central West of New South Wales. The father seeks, if the court decides the child should instead live with the mother during this intervening period, that he spend time with the child each weekend commencing today until 5 o’clock Sunday, two days hence, and then thereafter each weekend from 5 pm Friday to 5 pm Sunday. He proposes that changeovers occur at the home of the child’s maternal grandfather. That is not where the child lives.
The inference from the father’s proposal seems to be that if, in fact, the child is not to live with him in the Central West but to live with the mother in the Lake Macquarie area, that every weekend this child, not quite 14 months old, would have to undertake the return trip between the Lake Macquarie area and the Central West to spend time with him. I query whether that is in the best interests of a child this age. This has been nowhere addressed in the father’s evidence and it is a matter that causes me concern.
The primary position under the mother’s proposal is that the child live with her and spend time with the father each weekend from 9 am Saturday to
6 pm Sunday with the collection and return to be from and to her residence, and that the father’s time with the child be spent in the Lake Macquarie or Central Coast of New South Wales areas. She also proposes the child spend a period of one week in the school holidays at the end of term one with the father. The relevance of school holidays to this child escapes me. I take it that the point of that is simply to fix it at a particular discernable period in the year. The mother also proposes that for this current weekend that the child would be with the father from 5 pm today until 6pm on this coming Sunday, collection to be at the maternal grandfather’s home, the return to be at the mother’s home in the Lake Macquarie area.
If, in fact, the child is to live with the father in the Central West, the mother then seeks that the child spend time with her each weekend from 8 pm Friday to 3 pm Sunday, with the mother to collect the child from and return the child to the father’s residence and that her time with the child be spent in the Bathurst area. She seeks also that there be a block period of one week in the school holidays. The mother’s proposal, therefore, on either view of it, will ensure that this child is not exposed to excessive travel every weekend.
The critical issue, it seems to me, in this particular case is the father’s suggestion that there are good reasons for concern about the mother’s capacity to properly care for the child. This arises as a result of her admitted mental health conditions, being obsessive compulsive disorder, severe post-natal depression and anxiety depression. These are the terms the mother uses herself.
The mother certainly has had a hospital admission history since about June of last year and continuing into this year that would seem to suggest that she has been suffering acute psychiatric episodes. In that period of time there have been two involuntary admissions. There has also been two voluntary admissions. All of these have been to psychiatric hospitals. She continues under the care of a psychiatrist under an acute mental health team. She has visits weekly from a mental health nurse. But the mere fact that the mother suffers from mental health issues does not per se prove that she cannot care for a child.
As I indicated in submissions by counsel for the father, I would be looking to see whether or not there is evidence upon which the court might have genuine concern, either that the intrinsic nature of any condition that the mother suffers poses a risk to the child or, alternatively, if untreated and there is evidence to suggest that it is not being properly treated or medicated, that it may constitute such risk. No such submission was made to me.
There is evidence to suggest, as I say, that the mother for her own welfare has been involuntarily hospitalised twice last year. There is within the medical records that have been produced indications that at different times the mother may have been less than compliant with medication regimens recommended by her treating doctors.
On one occasion, the mother have left hospital contrary to medical opinion when she was a voluntary patient. On another occasion when she was an involuntary patient, she was discharged from involuntary care by a magistrate, despite medical opinion suggesting that she should remain in that facility.
But the difficulty I have in the father’s position is the care arrangements he agreed to post separation and what he did post separation. At separation he left the mother and the child in the Lake Macquarie area and moved to the Central West. That is not consistent with any then existing immediate concern for the safety of the child. He then agreed to a fortnight-about equal time care arrangement and, whatever else might be said about the appropriateness of that sort of an arrangement for such a young child, it is hardly consistent with a concern that the mother may be a risk to the child.
Rather, the submission that was made was that after separation the mother sought and received the assistance of her father and stepmother and there is no issue about that. She did, and appropriately so. She was having difficulty handling the emotional turmoil flowing from the breakdown of her relationship. She was also suffering severe post-natal depression. Rather than a matter of criticism of the mother, it is a matter of reassurance that she sought appropriate support. And the appropriateness of the support she sought is amply verified by the fact that it is the very people from whom she sought support that the father suggests should be the supervisors of the mother’s time with the child.
In January this year the mother returned to her habitual home in the Lake Macquarie area. She had initial fairly intensive support, particularly from her stepmother but also from her father. The evidence suggests that in time and in fairly short order the intensity of that immediate physical presence and support reduced. The evidence is, and I accept it for present purposes, that the mother’s father and stepmother arranged for weekly cleaning services in the mother’s home to assist her and reduce her workload. They remain available to her and speak to her daily on the telephone. There is nothing to suggest that they would not immediately respond to a call for help from the mother and, despite the fact that there have been instances last year when it might be suggested that the mother did not have appropriate insight into her own mental health needs, such does not appear to be the case at the present time nor at any time since separation. Quite the contrary, as I have said, the mother sought quite appropriate help and support.
She is continuing with engagement with mental health support services, both a psychiatrist and a mental health nurse. At that stage, I cannot see anything on the evidence which would cause me serious concern at present about the welfare of the child in the mother’s care. This is very much a preliminary view without even the level of evidence that might usually be available for an interim determination, limited and circumscribed though an interim determination may be. But I have been specifically asked by the father to make a determination at this stage and I, therefore, do so and the effect of the evidence, as I say, is insufficient to bear out the father’s expressed concerns which seem to me, in large measure, the basis for his claim.
I take into account, bearing in mind that these are parenting orders, of course, that I have to have regard to section 60CC and section 60B, that it is not suggested by either parent that there not be an opportunity for this child to develop a meaningful relationship with both parents. It has not been suggested to me that the arrangements that either party proposes would not achieve that, at least in the short term. I note the very young age for this child. I note that in the normal course, and absent the geographic separation of these parents, different arrangements to those being proposed by either parent might be more ideal in providing an opportunity for the development of appropriate relationships for a child of this age with each parent. But the reality is, of course, the geographic separation of the parents exists and so far as the proposals of each of the parties are concerned, I accept that they provide as best can be at the present time an appropriate opportunity for the development of the relationship and for the child to benefit from it, in relation to both parents.
There has been no suggestion of family violence. There has been no suggestion of child abuse. The child is too young, of course, to express any view. I have no real evidence in relation to the state of the child’s relationship with either parent.
I proceed upon the basis that the child has equivalent relationships with each parent. I note that the child was breastfed for the first four months of the child’s life but I also note interruptions in the mother’s direct physical involvement in the care of the child caused by her hospitalisations, and that the child’s life up to this point has been marked by frequent changes in the child’s care arrangements. There have been a number of adults, including the grandparents, who have been involved in providing primary care for this child and the parents need to have some regard to, at some point, the literature in relation to development theory and potential risks for children not given an opportunity to form a stable primary attachment, be it to one or both parents. But that is not something that I can address in the short term for the orders that I must make.
Otherwise, so far as the preparedness of each of the parties to facilitate the other’s involvement with and relationship with the child, I do not accept that the mother’s reneging on the agreement in relation to an equal time fortnight-about arrangement indicated on her part a lack of appreciation of the child’s need for a relationship with the father. Rather, I am satisfied that it reflected a recognition of the inappropriateness of those arrangements, arrangements which the father himself concedes were inappropriate. I note that also in relation to the parties ability to meet the child’s needs, the parties must be able to recognise those needs to be able to meet them and I have some concerns in that regard in relation to the father’s attempt to insist upon the continuation of what he concedes was an inappropriate parenting arrangement at the time that the equal time fortnight-about arrangement was terminated by the mother.
In relation to section 61DA, as I understand it, there is no issue that at least at this stage there should be an equal shared parental responsibility order. I am satisfied on the evidence at this stage that that would be in the child’s best interests. It would continue each of the parties’ appropriate involvement in decision making on major issues concerning the child.
As I intend making an equal shared parental responsibility order, under section 65DAA I must consider an equal time arrangement, and if I do not make such an order, I must then consider a substantial and significant time arrangement. In the limited time I allowed counsel in their submissions, it was not explicitly addressed, but I think it was taken as read that both an equal time arrangement and a substantial and significant time arrangement would not be appropriate for this particular child because neither is reasonably practical. Geographic separation of the parents, to which I have already referred, to my mind suggests there would be fundamental difficulties in that regard.
But in any event, I am satisfied that such an arrangement for a child at this age, on the evidence currently before me, would not be in the child’s best interests and, in fact, that was effectively conceded by counsel for both parties at the bar table, at least so far as an equal time arrangement is concerned. For a child this young, it is difficult to interpret and apply the definition of substantial and significant time but the spirit and intent of that, clearly, is that each parent have an opportunity to have as full as possible an involvement in all aspects of the child’s life, both the celebratory and recreational aspects as well as the day-to-day dreary aspects of care of the child. That, too, is somewhat difficult and problematic in a child of this very young age, and with the geographic separation of the parents.
I am, therefore, not satisfied that either an equal time arrangement or a substantial and significant time arrangement would be in the child’s best interests, prima facie, on the evidence I have before me.
Ultimately, I take the view that what is in this child’s best interests is that the child remain, pending the hearing of the interim proceedings, in the mother’s primary care. Amongst other things, that will leave the child in the company, not only of the mother, but of the youngest two of the child’s half siblings. Again, there was no evidence in relation to the child’s relationship with them but they clearly are people who are and should become even more significant to the child.
Otherwise, I am satisfied that the child should be spending time with the father, but I am not satisfied that that should entail the extent of travel that would be involved in the literal order that I was asked to make by the father. As I understand it, though, the father is proposing if I make an order that the child primarily live with the mother, that he would spend time with the child in the Lake Macquarie or Central Coast areas with relatives that he has there. So at that stage the father is recognising, as I understand it, the inappropriateness of this child being exposed to such regular long travel, at this very young age.
So far as what that time should be, doing the best I can on the very limited evidence at this stage, I propose to make the orders in the terms put forward by the mother. That is, the father's time will be 9 am Saturday to 6 pm Sunday of each weekend, together with the second week of the school holidays at the end of term 1. The restriction in relation to where the time is to be exercised will be changed so it will not just be the Lake Macquarie area but Lake Macquarie area or the Central Coast area. I will also make an order in terms proposed by the mother to cover the current weekend, and that should provide an opportunity for the parties to make arrangements for the father to collect the child at 5 o’clock this afternoon.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date: