Blizzard and Camoes

[2016] FamCA 1153

FAMILY COURT OF AUSTRALIA

BLIZZARD & CAMOES [2016] FamCA 1153

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother for an expedited final hearing – where final judgment dismissing the mother’s application to relocate with the children to Country I was delivered six months ago – mother hospitalised for mental health issues following judgment – submitted that  the mother’s health issues will impact upon her ability to care for the children – application opposed by the father and the Independent Children’s Lawyer – where the mother’s mental health was an issue raised at the previous final hearing – where the mother’s treating psychiatrist reports an improvement in her condition – application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Blizzard

RESPONDENT: Mr Camoes

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8891 of 2013

DATE DELIVERED: 7 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Mr McIvor

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

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

Orders

1. That the mother’s application in a Case filed 20 May 2016 be dismissed.

2. That the matter be placed in the pool of cases awaiting allocation to a Judicial docket.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blizzard & Camoes 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 MELBOURNE

FILE NUMBER: MLC 8891  of 2013

Mr Blizzard

Applicant

And

Mr Camoes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter of Blizzard & Camoes is in a Judicial Duty List this day upon an Application in a Case filed on 20 May 2016 on behalf of the mother.  That is an application that the final hearing of the mother’s Initiating Application filed 23 March 2016 be expedited.  The substantive application is an application in respect of parenting matters and, particularly, an application that the mother be permitted to relocate to Country I with the two children of the marriage.  The application that the matter be afforded priority is an application that is opposed both by the father and also by the Independent Children's Lawyer.

2. The background to the proceedings is that the issue of both parenting and financial matters were matters that were the subject of a final hearing before Stevenson J which was conducted over five days in the months of August and September 2015.  On 8 December 2015 her Honour made final orders in respect of parenting matters and property matters and delivered lengthy reasons for judgment.  Following the making of those orders, the mother filed a Notice of Appeal, although I am informed today that she has now abandoned that appeal. 

3. As noted, in March of 2016, the mother filed a further Initiating Application in which she sought sole parental responsibility for the children and also orders that she be permitted to relocate the residence of the children to Country I.  In her affidavit filed 20 May 2016 in support of her application for priority, the mother details the history of her health since the time of the trial before Stevenson J.  Her evidence is that in the aftermath of the trial, her mental health deteriorated.  That resulted in her being a voluntary inpatient at Z Hospital in September 2015 for a period of about two and a half weeks, between 10 December and 26 January 2016 and then for a further period of about three weeks from 5 February to 26 February this year. 

4. As a result of her hospitalisation, the children were placed in the care of the father.  Ultimately, he made an application in early March of 2016 in respect of a suspension of the operating parenting orders but also in respect of enforcement of property orders which remained outstanding.  These matters came before Senior Registrar FitzGibbon on 8 April 2016.  The Senior Registrar that day made orders for the mother to spend time with the children culminating in the resumption of the operation of the orders of Stevenson J that the children live with the mother with effect from 13 May 2016. 

5. The current position is that the children continue to remain in the mother’s care pursuant to those orders.  It is submitted on behalf of the mother that the matter should be afforded priority due to the severe mental health issues that she has suffered in the aftermath of the trial.  It is submitted that as she is the primary carer of the children, the exacerbation of her health issues is likely to impact upon them and, accordingly, the matter should be afforded priority.  In support of that position, the mother relies upon the affidavit of her treating psychiatrist, Dr R, which is an affidavit filed 6 April 2016.  In particular, reliance was placed on the last paragraph at page 9 of 11 of that affidavit where Dr R reported that:-

   As per my previous report dated 25 Feb 2016, persistence of symptoms is quite likely in the context of ongoing stressors related to the ongoing conflict about international relocation of children and now custody issues related to children.

6. The father’s position is that the matters now raised by the mother in the context of her current application are matters that were raised and ventilated before Stevenson J in the trial conducted before her in August/September 2015.  In support of that position, I was referred to Stevenson J’s judgment and, particularly, from paragraph 58 on where her Honour set out in detail the mother’s issues with respect to her functioning, and the difficulties and stress she was under which gave rise to ongoing treatment and evidence from her treating general medical practitioner, Dr Q and her psychologist, Ms L. 

7. Given that the issues were canvassed before Stevenson J, it was submitted on behalf of the father that the deterioration of the mother’s health following the trial was not an unforseen event and is not a matter of such significance as to warrant an urgent hearing.  This is particularly so given that the matter had five days’ hearing in the middle of last year with the consequential financial and emotional burden upon all parties, not just the mother. 

8. It was also submitted that the evidence of the mother, that is, the affidavit of Dr R, in fact indicated that since the onset of her illness, her health is improving.  In particular, the report of Dr R, which is the report dated 19 March 2016 (Annexure B to the affidavit of Dr R filed 6 April 2016), indicates that there has been significant improvement particularly at question 2 where the question is posed to Dr R as to whether or not the mother’s condition has stabilised or is close to stabilising and Dr R noted:-

   As per my understanding, her legal team has appealed further against the ruling, in January 2016.  This appeal process has provided her with a sense of hope that there could be a possibility of international relocation in the near future.

9. As I have noted, that appeal has been abandoned but in its stead, the mother has made the Initiating Application seeking to re-agitate those issues.  Dr R continues:-

   Apart from the ray of hope, [the mother] seems to be responding well to the medications, which had been prescribed. 

   As per my most recent review on 16^th March 2016, there has been a significant improvement in her mental state, which partly can be attributed to ongoing medications and therapy and partly to be able to meet and spend quality time with her children after at least 5 weeks of no contact with her children.

10. That is the most current medical evidence before the Court as to the mother’s state of health. 

11. From the Independent Children’s Lawyer’s perspective, the position is as follows.  The issues around the mother’s health were matters ventilated fully over the five days of trial before Stevenson J.  I was referred to and reliance was placed on paragraph 79 of her Honour’s judgment where she noted:

    I accept that the mother would be happier in Country I, at least in the short term, but I share the concerns of the Family Consultant as to the likely impact upon the father and the children of the proposed relocation.  The children have an established lifestyle in Australia, from which they will be entirely uprooted on the mother’s proposal.  That outcome would most likely place the children and the father in a very unsettled state, with only the mother having a sense of an improved lifestyle.  I accept that the mother will be likely to experience difficulties, at least in the short term, in coming to terms with an outcome whereby the children remain in Australia.  I have no doubt that she will remain in this country with the children, for whom she wishes to retain primary care.

12. A submission was also made to the effect that throughout the course of the trial, the mother exhibited a distressed state. 

13. Having regard to the matters submitted, and particularly having regard to the report of Dr R which seems to indicate, at least as at March of 2016, some improvement in the mother’s health from the position when she was hospitalised in September of 2015, December of 2015 and February of 2016, I am not persuaded that it is appropriate or in the children’s best interests for this matter to be afforded priority at this time.  The reality is that the children continue to live with and be cared for by the mother. 

14. There seemed to be some degree of optimism in the report of her treating psychiatrist.  I know that reliance was placed upon the evidence of the general medical practitioner but, at the end of the day, the treating psychiatrist is the person best placed, in my view, to provide evidence as to the mother’s current state of health and as to her prognosis for the future.  The children and the parties have endured a lengthy trial less than a year ago.  In my view, it cannot be in the children’s best interests to be exposed to further litigation at this juncture, particularly where there has been such instability with respect to their care arrangements as a result of the mother’s illness. 

15. It is to be hoped that the mother will continue to improve as is anticipated by her psychiatrist such that when this matter comes to be called on for trial, she will be in a position to prepare and run her litigation at that point in time.  Accordingly, and on the basis of those reasons, I make orders that the mother’s Application in a Case filed 20 May 2016 be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 June 2016.

Associate: 

Date:  7 June 2016