Berry and Katz

[2014] FamCA 105

FAMILY COURT OF AUSTRALIA

BERRY & KATZ [2014] FamCA 105

FAMILY LAW – CHILDREN – Interim parenting – Application by the father to change the residency of the child – Where the mother has not complied with a number of Court Orders –  Where there is expert evidence before the Court, albeit untested, as to the risk the mother poses to the child in respect of her parenting capacity and her mental health – Best interests of the child – Cautionary approach in respect of emotional risk of harm to the child – Application granted – Substantive hearing expedited

APPLICANT: Ms Berry

RESPONDENT: Mr Katz

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: PAC 3825 of 2012

DATE DELIVERED: 26 February 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 26 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hanna

SOLICITOR FOR THE APPLICANT: J A Brown And Co

SOLICITOR FOR THE RESPONDENT: Sterling Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The father’s Application in a Case filed 8 January 2014 in respect of issuing subpoenas in respect of Child Support and Centrelink records is withdrawn and dismissed.

2. The mother’s Application in a Case filed today in respect of other expert evidence is withdrawn and dismissed.

3. To the extent to which the previous report of Ms S was filed as an annexure to an affidavit, it is struck out as it does not comply with the Family Law Rules 2004 (Cth).

4. Orders in relation to the living arrangements and spending time with the mother made on 10 February 2014 are discharged and, in lieu thereof, pending further order the child is to live with the father and spend no time with the mother.

5. In respect of changeover of the child, the mother is to hand the child to the father at the Suburb B Police Station at 8.00 pm this evening.

6. The matter is relisted on Monday 3 March 2014 at 10.00 am in respect of the interim property matters.

7. The parenting matters are to be revisited on a date to be fixed in approximately one (1) months’ time.

8. The substantive hearing of the matter be expedited.

9. Leave is granted to the Independent Children’s Lawyer to relist the matter on twenty-four (24) hours’ notice in the event of any difficulties arising.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berry & Katz 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 PARRAMATTA

FILE NUMBER: PAC 3825 of 2012

Ms Berry

Applicant

And

Mr Katz

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This is an application in relation to C, who is aged seven, (“the child”), the son of Mr Katz (“the father”) and Ms Berry (“the mother”).  The mother and the father separated under the same roof in March 2010 when the child was three and a half.

2. On 14 November 2012 interim parenting Orders were made in the Federal Magistrates Court, as it then was, and in a response filed on 1 May 2013 the father sought further interim parenting orders. 

3. On 8 May 2013 Harman J of the Federal Circuit Court ordered that Dr D be appointed as a single expert in relation to the child and did not deal with the application for interim parenting orders until that report had been received. 

4. Dr D’s report was released on 26 September 2013 and the matter was transferred to the Family Court.  Although the father attempted to pursue his application for interim parenting orders in September and October 2013, it appears there was insufficient time for that application to be heard and the matter was adjourned for the purpose of obtaining expedited final hearing dates. 

5. Until recently, the child resided with his mother and spent time with his father every alternate weekend and also on a Wednesday afternoon in each other alternate week and in school holidays on a week-about basis.  On 10 February 2014 Orders were made by consent with respect to interim parenting, following an application which the father had made for the child to live with him and for the child to spend a similar amount of time with the mother as the child had previously had with the father, that the parents have equal shared parental responsibility and that the child be enrolled forthwith in a local public school. 

6. That application was not pursued as the parties reached agreement, and pursuant to those consent Orders, the child was to spend an increased amount of time with his father.  Such time was to be from 10.00 am Saturday until Wednesday before school in each alternate week and there was also an order made that the child be enrolled in Suburb B Public School. 

7. It was drawn to the Court’s attention in the course of that hearing that it was apparent that the mother had taken the child to her own treating psychologist, Ms S, and a psychologist’s report which has subsequently been struck out from Ms S referred to that psychologist’s observations and views of the parent-child interaction.

8. The mother agreed in Court on 10 February 2014 that she would not take the child to any appointment with her treating psychologist, Ms S, or any other psychologist and a notation was made to that effect in those Orders on that day. 

9. The application today is again for an interim orders sought by the father for the child to live with him and the mother to spend such time, as determined by the Court, and that the hearing of the parenting application be expedited.  The application is opposed by the mother but is supported by the Independent Children’s Lawyer.

Discussion

1. Many matters as far as the substantive hearing is concerned are in dispute and they relate to the parenting capacity of each of the parents, allegations made by the mother of violence perpetrated by the father, and the mother’s mental health and any impact that has upon her parenting capacity. 

2. The issue of the child attending school has been a central issue from the outset.  The child turned five in August 2011 and would ordinarily have commenced school in January 2012.  In late 2012 when the child was six, the mother obtained approval of the Department of Education to home tutor the child for a year rather than enrol him at school, which the father says was done without his consent.  From the father’s point of view the issue of schooling has at all times been a central one and that is why that particular Order made by consent only on 10 February 2014 is of particular significance to both the parties, it would appear.

3. It is essentially the case of the father that the mother has disobeyed or not ensured that the central Order of enrolling the child in school and ensuring that he attend school has been complied with, nor has her agreement, which was noted by the Court, that she not take the child to Ms S. 

4. In support of the application, the father has filed an affidavit.  The mother was given the opportunity to cross-examine him but that was declined.  The mother also gave some oral evidence and she was cross-examined. 

5. It is not in dispute as a result of that evidence that following the Orders of 10 February 2014 the parties enrolled the child in Suburb B Public School in accordance with the Orders.  It is not in dispute that the child attended school for three days only following the enrolment and that is when he was in his father’s care, and then he did not attend the balance of the two days of that week when he was in his mother’s care or the whole of the next week or the first three days of this week when he has also been in his mother’s care.

6. The mother made enquiries, and this is a matter that is not in dispute because she conceded it under cross-examination, from the first day and was told that the child had settled well, had made friends and was participating in class.  It is not in dispute that the mother took the child to her treating psychologist, Ms S, for some form of therapy.  It is also not in dispute that she attempted to obtain the consent of the father but it was not given. 

7. All of the other matters, including in relation to this interim application, are in dispute, in particular including the mother’s assertion about the child being ill, being traumatised at school, in effect, being her reasons for not complying with the Orders of the court. 

8. I am satisfied that the mother knew of the Orders and understood them and did not comply with them because she believed she had good reason not to comply. 

9. The Independent Children’s Lawyer supports the application made by the father.  The Independent Children’s Lawyer indicated that initially she did not support or did not take action of her own volition as a result of the report by Dr D when it was released, even though there were some very concerning aspects in that report, and noted that it is to the mother’s credit that some of the more concerning matters - and that is Dr D felt that there was at least some risk that the mother would act in a highly inappropriate or impulsive way which could place her son at risk, for example, going into hiding with him or, if the means were available to her, even to leave the country - did not occur.

10. However, Dr D expressed quite a lot of concern and in particular the Independent Children’s Lawyer referred to page 31 of his report where he said:

    My concern is that [the mother’s] longstanding emotional fragility is such that her emotional state will interfere in a variety of ways with the stability of [the child’s] home life, that her unusual beliefs may lead to a degree of social isolation, that his emotional stability may be undermined by her instability and that more abnormal ideas may at times interfere with the contact and continuity of his education and social contact.

11. The doctor went on to say at page 32:

    Importantly she appears to have a very high level of interpersonal sensitivity and is inclined to go on the attack when she is anxious.

12. He explained that this represented a degree of risk to the child in two ways, the first being the mother’s difficulty maintaining a stable emotional state when she is under external stress, and the second being that because this is not a commonplace level of anxiety, there have been periods in her life where she has become very paranoid and frankly delusional, which could lead to marked withdrawal or intemperate behaviour and frightening actions involving the child either directly or indirectly. 

13. Some of the other concerns were expressed at page 33 where the doctor expressed the view that the mother’s mental state, both when she is in a high state of anxiety and also when she is generally at her relative best, presents risks.  At the bottom of page 34 he said:

    Overall it is my view that it will probably be most prudent for [the child] to be placed with his father on an interim basis prior to the final hearing and for his time with his mother to be supervised.  Because of what she may say which may destabilise [the child] settling into his father’s home, this should be preceded by a period of four to six weeks of no contact with his mother.

14. Obviously taking an action of that kind against the background of a child who has primarily been in his mother’s care is a dramatic action and it is an action the Court would only approach with the greatest of caution.  I think what the Independent Children’s Lawyer did and what the father ended up doing was taking a cautious approach.  Although initially asking only a few weeks ago for the more dramatic order that he is seeking today, at that stage, a compromise was reached because the most contentious issues had been settled.  That the child spend increased time with his father and that he be enrolled in a public school were matters that had been agreed. 

15. The doctor did express concern about the mother’s reaction and it is unfortunate that it seems to have come to fruition in her withholding the child from school.  Overall, I think there were some very concerning aspects of her evidence today, particularly in her expressing that she went along with what the child wanted, a child who is seven years old, and effectively said that if he did not want to go to school that that was a matter for him and that she would not make him. 

16. It is a dramatic order that is being sought and, of course, being an interim order I can only proceed on the basis of the undisputed facts.  It is undisputed, however, that almost immediately after consenting to orders and the Court making orders the mother did not ensure that those Orders were complied with. 

17. In terms of the best interests of the child, I refer to and rely upon the very detailed report of Dr D.  I am very conscious that this is an untested report, but nonetheless some of the matters to which I referred and under each of the headings in regard to best interests, the doctor particularly highlights the risk factors for this child.

18. Under issues such as the nature of the relationship with the child with the parents the doctor described the mother as extremely anxious and having a very protective attitude towards the child and also suggested that the child is somewhat infantilised by his mother and that there is an enmeshed and over anxious attachment between them.

19. As I say, once again I accept that this is not tested but that is the opinion of the doctor based on his assessment.  The doctor was concerned about, in terms of the issue of the capacity of the parents, the emotional fragility of the mother, to which I have referred, and the mental state of the mother in particular, to which I have referred. 

20. As far as the likely effect of the change in circumstances, of course the change will be dramatic but not as dramatic as it previously would have been because the child has spent more time in his father’s care and it has also been made clear that the father intends to maintain him at the same school and in all other respects for the Orders to remain the same.  As the doctor felt that this change would come as a shock and surprise to the child, he suggested a role for the Independent Children’s Lawyer to explain the orders to the child.  The Independent Children’s Lawyer has indicated that she would be prepared to undertake that role.

21. Having regard to all of those matters and the best interest factors, I am of the view that it is in the best interests of this child for the orders in relation to the living arrangements and spending time with the mother made on 10 February 2014 be discharged and, in lieu, that the child is to live with the father and spend no time with the mother pending further order of the Court.

22. The matter is to return before the Court next week on Monday in respect of the interim property hearing and the parenting matters will be revisited on a date to be fixed, in appropriately one months’ time. 

23. I will make an order for the hearing of the substantive matter to be expedited and hopefully by the next return date we can have a date fixed for the trial.

24. I will also grant leave to the Independent Children’s Lawyer to relist the matter on 24 hours’ notice if there are any issues that arise.

25. In respect of changeover of the child, the mother is to hand the child to the father this evening at the Suburb B Police Station at 8.00 pm.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 February 2014.

Legal Associate:      

Date:    4 March 2014