Atwood and Atwood and Anor

[2015] FamCA 1177

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD AND ANOR [2015] FamCA 1177

FAMILY LAW – CHILDREN – Interim Parenting – Where there is one child who is nine years of age – Where the child had been living with the father – Where the mother did not attend or participate in the proceedings – Where the mother had displayed concerning behaviour – Where the Court was satisfied that there had been substantial compliance with orders for service on the mother – Orders made that the father have sole parental responsibility in respect of the child subject to written direction from the Secretary of the Department of Family and Community Services – Orders made restraining the mother by injunction from removing the child or having contact with the child except in accordance with written direction by the Secretary of the Department of Family and Community Services

Family Law Act 1975 (Cth)
APPLICANT:	Mr Atwood

RESPONDENT: Ms Atwood

INTERVENOR: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Durand

FILE NUMBER: SYC 3943 of 2014

DATE DELIVERED: 23 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT FATHER: Mr Condon

RESPONDENT MOTHER: No appearance

COUNSEL FOR THE INTERVENOR: Mr McGorey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Durand

Orders

1. Until further order the father have sole parental responsibility in respect of the child B, born … 2006) and the Court notes that his parental responsibility is subject written direction from the Secretary of the Department of Family and Community Services.

1. Orders are made in terms of the document titled “Orders” (Exhibit 1 dated 23 July 2015), as amended and as set out hereunder:

Procedural

1.      That the Secretary, Department of Family and Community Services (“Secretary”) and the Independent Children’s Lawyer are granted leave to relist the matter upon 3 days’ notice to the parties and the Court.

2.      That the Secretary be granted leave to issue subpoenas in these proceedings for the purpose of obtaining documents which may be provided to the Single Expert, Dr H.

3.      That the Secretary be granted leave to access, uplift, and copy any documents produced in response to a subpoena.

4.      That any updating evidence be filed and served by 14 October 2015, and must be provided to the Independent Children’s Lawyer by no later than COB 14 October 2015 so that it can be provided to the Single Expert, Dr H.

5.      That these proceedings are listed for directions hearing on 15 December 2015 at 9.30am following the completion of the Single Expert’s report.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

6.      All parenting orders made in the Family Court of Australia in relation to the child B, born … 2006 (“the Child”) are suspended.

Live with and time spent

7.      The Child is to live with the Applicant Father, Mr Atwood (“the Father”).

8.      The Court accepts the following undertakings from the Father:

a.To accept the supervision of the Secretary in relation to the care of the Child including permitting, without notice, home visits and access to the Child by caseworkers employed by the Department of Family and Community Services;

b.To refrain from using illegal drugs and abusing alcohol whilst the Child is in his care; and

c.To permit the Respondent Mother Ms Atwood (“the Mother”) to spend time with the Child as directed by the Secretary or his delegate.

9A.   Deleted.

9B.   That the Father will obtain a mental health plan for the Child and arrange for the Child to attend upon Ms I, Child Psychologist as recommended.

Injunctions and restraints

10.    The Mother is hereby restrained by injunction pursuant to 68B(1) of the Family Law Act 1975 from:

a.Removing or taking possession of the Child; and

b.Having contact with the Child

except in accordance with the written authorisation to do so by a delegate of the Secretary.

11.    The Mother and Father are hereby restrained by injunction pursuant to 68B(1) of the Family Law Act 1975 from:

a.Denigrating the other in the presence or hearing of the Child and from permitting the Child to remain in the presence or hearing of another person denigrating the other; and

b.Discussing any allegation made or evidence given in these proceedings to or in the presence of the Child and from permitting another person to do so.

Notation:

1.      The Secretary initially proposes to direct that the Child spend time with the Mother twice a week, between Monday to Friday, for 90 minutes, such time to be supervised by, and at the discretion of, the Secretary or his delegate.

2.      If the Secretary is satisfied that contact is progressing well and is satisfied with the Mother’s engagement with Family and Community Services, the Secretary will consider unsupervised contact at a later time.

3.      The Secretary will not allow contact at the Mother’s home without first conducting a home visit.

4.      It is the intention of the parties that a maximum of four volumes (two volumes of affidavit evidence and maximum two volumes of subpoena material) of material be provided to the expert.

1. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. A sealed copy of these orders be served on the mother by ordinary prepaid post to her address for service which is PO Box …E Town NSW 1485.

1. Leave is granted to any party to apply in relation to these orders or in relation to the proceedings generally on giving at least 48 hours written notice to the other parties and to the Court.

Notation:

A.The Court notes that there is no appearance by or on behalf of the mother today; the Court is satisfied that there is has been substantial compliance with orders for service on her; that the mother has taken some steps in property proceedings; and yet for the second occasion has failed to attend at Court.  There is evidence that the mother is keeping house and the Court has serious concerns as to the mother’s mental health and safety.  The Court requests favourable consideration of action by the NSW Police and/or the local Mental Health Crisis Team to satisfy those authorities that the mother is well and has adequate support.

B.The Court notes that the interviews with Dr H, the single expert forensic psychologist are fixed for 2 and 3 November 2015.  The parents are to attend on Dr H as directed by him on one or both of those dates.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3943 of 2014

Mr Atwood

Applicant

Ms Atwood

Respondent

Secretary, Department of Family and Community Services (NSW)
Intervenor

REASONS FOR JUDGMENT

1. These are proceedings between a father and mother in relation to financial and parenting matters.  As to the parenting issues, the Secretary of the Department of Family and Community Services (“the Department) has intervened.  The parenting proceedings relate to a child B, born in 2006.  He was living primarily with the mother, having some time, but not much, and sporadically with the father, in circumstances that appear from the record.  The Department was invited to intervene in the proceedings.  Ultimately, the Department took the child into care.  There is consent from the Secretary to the proceedings continuing under the Family Law Act1975 (Cth).

2. Some background facts were referred to in earlier reasons for judgment in these proceedings made on 11 March 2015 and I will not repeat them here.

3. Orders were made by Johnston J on 18 June 2015, in circumstances where there was no appearance for the mother.  The Court was satisfied on that date that endeavours had been made to serve her, and she had not appeared.  The matter was adjourned to today’s date, and orders were made until 4.00 pm today or until the expiration of emergency Care and Protection order made in the Children’s Court at Parramatta on 11 June, whereby all civil parenting orders were suspended.  The child was to live with the father on the basis of certain undertakings given.  The mother was ordered to accept the supervision of the Secretary in relation to the child, including allowing access to her premises and so on.  The mother was restrained in relation to the child, from removing him or having contact with the child, except in accordance with a written authorisation from the Secretary.  And injunctions were imposed on the parents.  There was a notation that the Secretary proposed to arrange for the child to spend time with the mother twice a week, during Monday to Friday, for 90 minutes at a time on a supervised basis.  It was also noted that if that went well, there might be unsupervised time at a later date.  There was a notation that time would not be allowed at the mother’s home without a home visit being undertaken by departmental officers.  Orders were made for the appointment of a single expert, Dr H, a forensic psychiatrist, to investigate certain matters and to report.  Documents were to be provided to the Secretary and the matter was put over to today’s date.  Various efforts have been made to communicate all of that to the mother.  I am satisfied that there has been substantial compliance with the orders for service.  There is no appearance by the mother or on her behalf at 10.30 am today.  It is appropriate in those circumstances to proceed in the mother’s absence.

4. Draft orders have been prepared and consented to as between the father, the Secretary and B’s lawyer, providing for leave for the Secretary to seek the issue of subpoenas, access to the documents for the purposes ultimately of the provision of documents to the expert; putting the matter into a list in December for directions following the completion of the report which is foreshadowed for completion on 11 December 2015.  The parties have agreed that 15 December 2015 would be an appropriate adjournment date.  It may be that the father’s solicitor will appear by consent through one of the other representatives or perhaps by telephone. 

5. The suspension of existing orders is continued under the proposed orders.  The child will continue to live with the father.  Notations are made about the father giving undertakings.  I assume they are undertakings given through his solicitor today, and that he understands what it means to give an undertaking to the Court.  It had been proposed that a similar situation occur in relation to the mother.  There is no evidence that she knows about the terms of the proposed undertakings let alone that she is willing to adhere to them.  Therefore the matter would go forward without her undertakings. 

6. It is agreed that the father will obtain a mental health plan for the child, and for that purpose, there will be an attendance on a Ms I, who is a child psychologist.  The injunction continues in relation to the mother removing or taking possession of the child, or having contact with the child other than under a written authorisation from the delegate.  The injunctions made on the last occasion continue in respect of the parents as between themselves.  A notation is proposed about the aspiration of the Secretary for time with the mother if all goes well. 

7. Normally the Court would not make an order that leaves to somebody else a decision about an important and substantive issue in the proceedings.  If proceedings are before a court, then courts make the decision.  For example, a court would not make an order that there be such time between the child and a parent as a family consultant recommends, or as a psychiatrist recommends.  This a little bit different because, in effect, there has been an interference with parental responsibility.  The Secretary here has indicated the parameters for a decision about time.  In any event, because of the background facts, the court would be very concerned about the mother having any unsupervised time with this child, until there have been an expert’s report or the mother had presented herself to the court and satisfied the court that the child would be safe and well with her. 

8. The child has not had any time with the mother since the last court date.  The child has not even had any time with the mother through his school.  It is of great concern that the mother is taking no part in the parenting proceedings and yet is continuing to engage with the court processes as far as the financial aspect of the proceedings are concerned.  On 17 June 2015, a subpoena issued at the application of the mother to an organisation called J Corp, returnable on 29 July 2015. 

9. The mother’s behaviour, as was revealed in earlier reasons, was quite bizarre.  I recall that I was told that because of the mother’s concern in relation to asbestos near the hot water service or the unit’s power box, there had been no hot water in the unit occupied by the mother and this child for some time. 

10. The mother’s case was that the circumstances at the unit were appalling and inappropriate and dangerous, to the point where it would be too dangerous for her to allow entry by a professional valuer into the unit and yet it was her application to continue to have the child living in the unit. 

11. Those matters cause great concern, and they were the catalyst for the request for the intervention of the Department in the first place.  On inspecting the unit the Departmental officers took the child into care under the State legislation.  I remain terribly worried about the mother.  She was, on any view, the primary care giver of the child.  She is apparently able to take part in the Court proceedings and to focus on matters perhaps relevant, perhaps peripheral, to a financial aspect of the proceedings and yet she has taken no steps to be involved in the parenting case. 

12. The mother says on documents that her address for service is a post office at E Town.  There is evidence before me that she has a letterbox at the relevant unit, that the letterbox has been cleared at least on one occasion in recent times.  There has been an email address which was said to be the mother’s preferred method of communication, and those communications have now been blocked. 

13. I am told that from the Department’s point of view that there is no further action by the police or a mental health team in respect of the mother that they are aware of.  Hopefully that means that there has been some contact with her and she has satisfied the authorities that she is well.  I have indicated to the parties today that I will renew my earlier expressed concern in relation to the mother’s mental health and request that the appropriate agencies satisfy themselves, within the terms of their own responsibilities, that this lady is well. 

14. Let alone the obvious concern for the mother, it would have a devastating effect on the child if something happened to her. 

15. The orders proposed are appropriate and make sense of the facts.  I will insert 15 December 2015 in paragraph 5 of the terms and at 9.30 am instead of 10.00 am.  I will delete from the document the Court’s acceptance of an undertaking from the mother.  I would apprehend that before the steps taken by the Department foreshadowed in the document, they would be seeking from her a written adoption of those undertakings.  Formal undertakings are not strictly required, the Department can make those requirements in any event. 

16. The position at general law is that parents have parental responsibility for children.  That makes no sense of the current facts.  The Secretary has not sought, under the State legislation or under the Family Law Act1975 (Cth), to assume parental responsibility in respect of this child, but the proposed orders make it clear that the father’s parental responsibility will be circumscribed at least to the extent of the directions of the Secretary or the Secretary’s delegate.

17. I have asked the parties present whether they would oppose me interfering with the parental responsibility position.  I think I am obliged to.  In the circumstances it would be ludicrous if the mother could authorise medical treatment or anything else for this child for this interregnum.  Of the Court’s own motion, I will order that until further order, the father have sole parental responsibility in respect of the child B, and that his parental responsibility is subject to written direction from the Secretary of the Department of Family and Community Services. 

18. The document titled Orders is exhibit 1.  I make orders in terms of that document, save in respect of paragraph 9(a).  I order that a sealed copy of these orders be served on the mother by ordinary prepaid post to her address for service, which is PO Box …, E Town, …, New South Wales.  I give leave to any party to apply in relation to these orders, or in relation to the proceedings generally, on giving at least 48 hours written notice to the other parties and to the court. 

19. I note that there is no appearance by, or on behalf of, the mother today.  The Court is satisfied that there has been substantial compliance with orders for service on her, that the mother has taken some steps in property proceedings and yet, for the second occasion, she has failed to attend at Court.  There is evidence that the mother is keeping house and the court has serious concerns as to the mother’s mental health. 

20. The Court requests favourable consideration of action by the New South Wales Police and/or the Regional Mental Health Team to satisfy those authorities that the mother is well. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 July 2015.

Associate: 

Date:  7 January 2016