Benson and Jess (No 2)

[2015] FamCA 316

FAMILY COURT OF AUSTRALIA

BENSON & JESS (NO 2) [2015] FamCA 316

FAMILY LAW – CHILDREN – Interim Orders – where mother seeks to increase time spent with child – where father concerned mother’s mental stability use poses risk to the child – consideration of psychiatric report – best interests of the child - views of the child– importance of maintaining meaningful relationship with a parent – orders made extending time spent between child and mother.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Benson

RESPONDENT: Mr Jess

FILE NUMBER: ADC 4591 of 2014

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Denise M Rieniets & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Adelaide Lawyers

Orders

1. That the child B born … 2004 shall live with the father.

2. That the said child shall spend time with the mother as follows:-

   (a)from Friday at 5pm to the following Sunday at 5pm commencing 15 May 2015 and each alternate weekend thereafter;

   (b)from Thursday at 5pm to the commencement of school on Friday commencing 7 May 2015 and each alternate week thereafter;

   (c)for one half of the school holidays at times to be agreed but in the absence of agreement for the first half commencing at 10am on the first Saturday of the holidays and concluding 5pm on the middle Sunday of the holidays.

3. That paragraphs 2, 3, 4 and 5 of the order made on 11 March 2015 do continue until further order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Jess 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 ADELAIDE

FILE NUMBER: ADC 4591 of 2014

Ms Benson

Applicant

And

Mr Jess

Respondent

REASONS FOR JUDGMENT

INTRODUCTION AND BACKGROUND

1. The proceedings involve a consideration of parenting issues in respect of B (“the child”) born in 2004.

2. On 27 February 2015 I heard extensive argument in respect of an interim application by the mother to spend time with the child.

3. The chronology of events as set out in delivered reasons on 11 March 2015 provides only an overview of the complex factual matrix which involves Ms Benson (“the mother”) and Mr Jess (“the father”) and the child.

4. The orders made on 11 March 2015 which provide for the child to spend time with the mother each Sunday between 10am and 4pm should be seen against the background of a separation in March 2008 and thereafter the child spending no time with the mother until December 2014.

5. In addition to providing for regular time to be spent between the child and the mother (together with an order that the child be able to communicate with the parties by telephone) the orders of 11 March 2015 also provided for the mother to undertake up to three random urine/blood tests in accordance with the chain or custody protocol specified in AS/NZS 4308:2008.

6. The father has been steadfast in his opposition to the child spending time with the mother other than in circumstances of strict supervision.  It has been his concern that the mother suffers from poor mental health and has little insight into the potential for serious adverse impact on the child by her denial of a long psychiatric history.  The father is concerned as to the stability of the mother’s mental health and does not accept that she has been able to effect a successful rehabilitation of her alleged medication and alcohol abuse.

7. For her part, the mother denies that she currently suffers from any mental illness that would impact upon her ability to parent the child and in particular does not agree that the child would be at risk in her care.  Whilst she admits that there were issues with alcohol in the past, they are no longer a feature of her presentation.

8. Accordingly the mother seeks to resume a relationship with her daughter without the constraint of strict supervision.

9. The hearing on 27 March 2015 included submissions in respect of a Family Report that provided assistance to the Court. 

10. The presentation of the mother’s proposals to the family consultant included Option “A” and Option “B”.  Option “A” has the child residing primarily with the mother and spending significant and substantial time with the father.  Option “B” proposed the reverse scenario namely, that whilst the child would reside primarily with the father and his family she would nonetheless spend significant time with the mother.

11. The family consultant reported helpfully that the child’s wishes were clear that she was keen to experience a meaningful relationship with her mother but in circumstances where she would remain in the primary care of her father.

12. The final recommendation of the family consultant is worth repeating:-

    It is recommended that in the event no significant mental health, alcohol misuse issues and child protection issues are determined then consideration is given to unsupervised time spending commensurate to [Ms Benson’s] Option “B”.

13. The proceedings were adjourned to 24 April 2015 to enable the parties to file further affidavit material and to give consideration to the wife’s application generally but also the appointment of an Independent Children’s Lawyer (“ICL”).

APPLICATION

1. As of 17 April 2015 the mother is now represented by different solicitors.

2. On that date an affidavit of the mother’s solicitor was filed enclosing a psychiatric report prepared by Dr F dated 26 March 2015.

3. No further affidavit material was filed.

4. Accordingly, the hearing was of narrow compass namely, whether the Court could be sufficiently satisfied from the matters raised in the psychiatric report (“the report”) that consideration could be given to extending the time that the child currently spends with her mother.

5. Counsel for the father argued that the report should be given little weight because it was not comprehensive of all of the information that was available.  In particular it is alleged that the mother did not provide the father’s affidavits to the psychiatrist for his consideration.

6. The letter of instruction to the psychiatrist from the mother’s solicitors is dated 23 March 2015.  It is a relatively comprehensive document which seeks by way of overview a report in respect of the following matters:-

   ·The nature of any illness or health problems that Ms Benson suffers from.

   ·The treatment and medication that has been prescribed.

   ·Whether the mother has suffered or suffers from any particular stressors and emotional and physical impact on her as a result.

   ·The mother’s capacity to care for the children.

   ·Future treatment and/or prognosis.

7. I consider that the direction of the report is appropriate.

8. In addition the letter of instruction summarises the mother’s background.  Of relevance are the following issues that were highlighted:-

   ·That the mother was raped at age of 16 years in Sydney but did not report the incident to Police.

   ·The mother was prescribed Zoloft and Prozac during her late teens at various periods of time.

   ·At age 18 years the mother started using recreational drugs including cocaine and ecstasy.  That the recreational use of these drugs continued for 10 years.

   ·That the mother and the father took drugs together on a recreational basis.

   ·That she ceased using drugs in 2004.

   ·That she had regular but not daily alcohol consumption.

   ·That she attended a 10 day alcohol rehabilitation course in Country H.

   ·That from January - October 2009 the mother was prescribed a low dose of Seroquel.

   ·That she attended an alcohol rehabilitation program in Sydney in June 2009.

9. The psychiatrist sets out at paragraph 27 the documents relied upon.  Demonstrably whilst providing her affidavits, there is no affidavit of the father.

10. Given the remarks of the psychiatrist in his report, it is difficult to understand why the mother’s solicitors did not forward the father’s documents.  Counsel for the father argued that the omission, apparently deliberate, represents a significant flaw in the integrity of the report and therefore the weight that can be given to it for the purposes of the present argument.

11. To the extent that it is criticism directed to the mother and her solicitors it is well founded.  The difficulty clearly exemplified by the affidavit of the mother filed 16 January 2015 having been provided but the father’s affidavit to which it relates and answers was not.

12. In that regard I have reviewed the father’s affidavit material and consider that the high water mark of his argument must centre upon the allegations he makes at paragraphs 13 to 45 of his affidavit filed 24 December 2014.

13. He alleges that the parties separated in February/March 2008 following a long period of alcohol and substance abuse by the mother in the Country G and Country H.

14. Her behaviour was highlighted by extreme psychotic episodes, physical and verbal abuse and threats of self-harm both in relation to her own life but also the father and the child.

15. The mother’s alcohol consumption was so substantial that the father alleges she would “pass out” whilst caring for the child.

16. The father expresses that the mother was admitted to a psychiatric and detoxification facility whilst in the Country G and then undertook further rehabilitation in Sydney.

17. The father also alleges that the mother was suffering from bipolar disorder with extreme socio-pathetic tendencies. The mother had a disturbed adolescence having been the subject of ongoing sexual abuse by her father. 

18. The consideration of submissions made by counsel for the father are then to be best summarised by a consideration as to whether the matters that would have been raised for consideration by the psychiatrist if he had the advantage of the father’s affidavit material, have nonetheless been given consideration.

19. The letter from the mother’s solicitor to the doctor dated 23 March 2015 is a comprehensive document.  Whilst it has matters of criticism directed to the father’s behaviour, nonetheless it provides a reasonable summary of the mother having psychiatric and other health issues from an early age potentially arising from a rape when she was 16 years old.  The issue of alcohol abuse is properly joined in the letter and whatever the observations of the father might be as to the mother’s behaviour when under the influence of drugs or alcohol, the issue is dealt with by a concession of the mother of chronic alcohol use.

20. I am satisfied that the psychiatric assessment undertaken was comprehensive.  Appropriate expertise and protocol was undertaken and the doctor records the following:-

    It is important to recognise that a psychiatrist considers a range of information when assessing a person.  The information often includes:-

    ·The history provided by the person;

    ·The mental state examination;

    ·The results of objective psychiatric measuring instruments;

    ·Ancillary information or interviewing people who know the person.

21. The doctor records that in the mother’s case he was aware that the ancillary documents (but noting no affidavit from the father) nonetheless revealed a number of allegations regarding the mother.  Whilst she denied many of them, that of course cannot be seen as a criticism but simply another factor to be brought to account.

22. The psychiatrist considered that:-

    Based upon a reasonable degree of medical probability, the mother is not currently suffering from a psychiatric disorder.  She has previously suffered from an alcohol use disorder and from a chronic adjustment disorder with a depressed and anxious moods.  She previously used illicit drugs but based on her history this use fell short of meeting the diagnostic criteria for a substance related psychiatric disorder.  I qualify my views regarding her diagnosis by noting that it would appear that the father’s affidavit contains a number of allegations regarding [Ms Benson].  I asked to read this affidavit and was told that I could not see it.  For completion, it would have been better if I could have read it.

23. Clearly, the psychiatrist was alive to a range of allegations directed against the mother by the father.  Whilst he was not provided with the needle, it could be said that he found the haystack.

24. I am satisfied that the information available to the psychiatrist was sufficient for the issues relevant to the competing proposals of the parties to be considered.  In summary, does the mother present a risk to the child such that any time that should be spent with her should be under strict supervision?

25. The doctor was able to opine that notwithstanding the previous history, the mother whilst experiencing significant psychological stressors over a number of years, is not currently suffering from any psychiatric illness.

26. When asked his opinion as to the mother’s capacity to care for her children, his response was as follows:-

    I can see no psychiatric reason why she could not parent her two daughters.  She is not suffering from a psychiatric disorder.  There would appear to have been some allegations made about her but I am unaware of any evidence that she has not adequately looked after her children when they have been in her care.

CONCLUSION

1. It is a relevant consideration that neither party has filed further affidavit material notwithstanding the significant orders put in place on 11 March 2015.

2. Moreover it is conceded by counsel for the father that there has not been a request for the mother to undergo a drug or alcohol test pursuant to the random testing process as ordered.

3. The mother does not present with a psychiatric disorder and whilst I have obvious concerns as to the basis upon which the father’s affidavit material was not provided to the psychiatrist, I am nonetheless satisfied that the issues relevant for my determination have been both targeted, raised and the subject of appropriate assessment.

4. There has been no application made to have the mother separately or independently psychiatrically assessed.

5. In my reasons delivered 11 March 2015, I set out the process by which I heard and determined the interim proceedings.  I had and continue to have regard to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286 and in a manner not dissimilar to my earlier consideration, I have regard to the competing proposals of the parties, the identification of the issues in dispute and the identification of any agreed or uncontested relevant facts.

6. I have clear regard to the provisions of s 60CC and I consider that many of the matters considered by me in the earlier hearing are relevant to the current considerations.

7. I do not consider that the evidence supports a contention that there are risks to the child and that therefore orders should be made with a focus on protecting the child as an overarching consideration to the benefit of the child having a meaningful relationship with both of her parents.

8. I remain impressed with the level of maturity of the child and in determining that there should be overnight time between the mother and the child, I give significant weight to the child’s wishes in this regard.

9. Unfortunately I have not been assisted in terms of the mechanics of the mother’s orders but propose to do the best that I can.

10. Neither party requested the appointment of an ICL at this stage and I do not see that there is a need at this stage to do so.

11. According, I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 1 May 2015.

Associate: 

Date:  1 May 2015