Bostridge and Smallwood

[2016] FamCA 750

FAMILY COURT OF AUSTRALIA

BOSTRIDGE & SMALLWOOD [2016] FamCA 750

FAMILY LAW – Interim parenting – change in interim parenting arrangements referrable to decline in mother’s parenting capacity – DHHS support immediate change in interim arrangements – case management

APPLICANT: Mr Bostridge

RESPONDENT: Ms Smallwood

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms S Nicholes

FILE NUMBER: MLC 11328 of 2014

DATE DELIVERED: 12 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Frajsman

SOLICITOR FOR THE APPLICANT: RF Legal

COUNSEL FOR THE RESPONDENT: Ms Jeans

SOLICITOR FOR THE RESPONDENT:	Taft Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholes Family Lawyers

Orders

IT IS REQUESTED THAT:

1.That the independent children’s lawyer provide the Proper Officer of the Department of Health and Human Services at Suburb K (marked to the attention of Ms B) with a copy of the following documents:-

a)      The s 62G(2) report of Ms C;

b)      The reports of Mr D, psychiatrist dated 8 September 2015 and 20 October 2015;

c)      A transcript of the evidence given this day by Ms B.

IT IS DIRECTED THAT:

2.The telephone link with Ms B of the Department of Health and Human Services this day be transcribed and when transcribed a copy be placed on the Court file, provided to each party to the proceedings including the independent children’s lawyer.

UNTIL FURTHER ORDER IT IS ORDERED THAT:

3.The paternal grandmother, Mr Bostridge, be released from her undertaking given to this Honourable Court on 14 September 2015.

4.All previous orders providing for the child E born … 2014 (“the child”) to live with and spend time or communicate with the mother and the father be discharged.

5.Paragraphs 7 and 12 of the Order made on 20 April 2016 be discharged.

6.Paragraph 9 of the Order made on 20 April 2016 be varied by deleting the words “prior to the date … in paragraph 13 below” and inserting the words “Not less than 7 days prior to the adjourned date”.

7.The child live with the father commencing this day and, for that purpose the father and the independent children’s lawyer forthwith make arrangements for collection of the child and inform Ms B of those arrangements.

8.The child spend time and communicate with the mother as follows:-

a)      Each Tuesday (commencing 16 August 2016) and Saturday (commencing 20 August 2016) from 9.30 am to 12.00 noon.

b)      On the mother’s birthday and the child’s birthday from 9.30 am to 12.00 noon;

c)      On Christmas Day 2016 for 3 hours as agreed; and

d)      Such other times as agreed between the parties in writing.

9.All the time the child spends with the mother pursuant to paragraph 8 hereof be supervised by Ms F or Mr Bostridge or such other person as approved by the independent children’s lawyer prior to the time taking place and such approval be confirmed in writing.

10.The time pursuant to paragraph 8 hereof occur at places agreed between the mother and the father, and in default of agreement as nominated by the father.

11.The mother, by herself, her servants and agents be and hereby is restrained from removing the child from the father’s care (or the supervisor’s care).

12.Thee mother and the father within 7 days do all acts and things and sign all documents to enrol in (and compete intake procedures as directed by) supervised time at:-

a)      I Children’s Contact Service, Suburb G (“Suburb G”);

b)      I Children’s Contact Service, Suburb H (“Suburb H”).

13.The mother and the father accept the first offer of time by either Suburb G or Suburb H (regardless of the day or time offered) for the child to spend supervised time with the mother at Suburb G or Suburb H, at the equal shared cost of the mother and the father.

14.Time pursuant to paragraph 12 hereof replace one of the weekly or fortnightly spend time periods (whichever is offered by Suburb G or Suburb H) as set out in paragraph 8 hereof.

15.This matter be listed for mention before me on 13 October 2016 for consideration of whether the final hearing fixed for 21 November 2016 ought to be vacated.

16.The mother and the father by themselves, their servants and agents be and are hereby restrained from referring to the other parent by any name or reference other than “mum”, “mummy”, “mother” or “dad”, “daddy” or “father” and shall correct any person referring to the other parent in any other manner whilst in the presence or hearing of the child.

17.The father inform the independent children’s lawyer and the mother’s solicitor of the name and address of the child’s day care centre, and ensure that the mother is named on the enrolment forms (but not as an emergency contact).

18.The mother be at liberty to obtain any and all information usually provided to parents by the child’s day care centre, subject to the day care centre’s policy thereto.

19.Certify for counsel.

20.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

21.That the minute of orders as proposed by the independent children’s lawyer as amended be marked Exhibit “ICL1” and remain on the Court file.

22.The minute of orders as proposed by the mother be marked Exhibit “M1” and remain on the Court file.

AND THE COURT NOTES:

A.The father has made arrangements to work from home three days a week, and the child will attend child care at a minimum of two days per week.

B.The father intends to remain living with the paternal grandmother for the foreseeable future and will give two months’ notice of any intention to move away from that address permanently.

C.The mother has proposed Ms J as an alternative co-supervisor and will provide all appropriate particulars to the independent children’s lawyer as soon as practicable.

D.For the removal of any doubt in relation to the Intervention Order obtained on an interim basis by the mother against the father in Case Number … on in the Magistrates’ Court of Victoria at Suburb K, the office of the independent children’s lawyer has contacted Ms B of the Department of Health and Human Services who indicated the Department support for the child to live with the father and that support was confirmed by Ms B today, by telephone, in open court.

E.The mother left the precincts of the Court prior to the proceedings being completed and counsel for the independent children’s lawyer informed the Court that she had observed the mother to be in an agitated state.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11328 of 2014

Mr Bostridge

Applicant

And

Ms Smallwood

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in a busy duty list on an application in a case filed by the father on 3 August 2016, in which he seeks that E (two years old) reside with him until further order, the mother undertake and complete a psychiatric assessment, and the mother comply with all drug screens as requested by the independent children’s lawyer. The application is supported by the father’s affidavit, sworn 2 August 2016.

2. The mother’s response to an application in a case was filed on 11 August 2016, wherein she seeks that the father’s application be dismissed, and that the order made on 20 April 2016 remain in full force and effect. The mother’s response is supported by an affidavit sworn or affirmed by her on 11 August 2016.

Background

1. The mother and father met in 2012 and commenced a relationship shortly thereafter. They commenced residing together in late 2012. They separated in May 2013, reconciling later that year when the mother informed the father that she was pregnant, then separating finally in November 2013. the child was born in 2014, and the father was confirmed, by way of a paternity test, on 1 April 2014, to be the child’s natural father. The history of the parties’ relationship and much of the situation up until April 2016 is rehearsed in the family report by Ms C, which is dated 31 March 2016. I will not repeat it.

2. It is apparent that the mother maintains serious allegations against the father for cyber stalking and domestic violence, which the father denies. That is a serious allegation in respect of which I am not in a position to make any findings as to whether or not it occurred. Neither can I put it out of my mind. It is a factual issue to which I must have regard.

3. The recommendations of the family consultant, Ms C, are set out at paragraph 139. They read as follows:

   [139]. The writer would respectfully make the following recommendations based upon this assessment and dependent on relevant findings of fact:

   a.        [The child] will live with his mother and spend time with his father provided that [Ms Smallwood] addresses the following issues:

   i.         Undertake and complete counselling to address underlying issues and to promote a positive pathway through life;

   ii.        Undertake and complete a parenting course;

   iii.       Undertake an assessment at ABIAS, Telephone …;

   iv.        Maintain a communication book that focuses on the child;

   v.         Comply with all Court Orders;

   vi.        Attend all changeovers at Family Life the times as agreed or ordered;

   vii.      [Ms Smallwood] engage with Child First;

   viii.     Support the child to spend time and communicate with his father in a consistent and sustained manner;

   b.        It is recommended that during this period [the child] spend time with his father each Saturday 10.00am until Sunday 6.00pm and on the alternate Saturday from 10.00am until 6.00pm.  This is to continue until December 2016 after which time [the child] will remain with his father each alternate weekend from Friday 6.00pm (or after school or child care) until Sunday 7.00pm and by agreement one night during the week.

   c.        In the event that [Ms Smallwood] cannot comply with the forgoing then [the child] will live with his father and spend time with his mother each alternate weekend from Friday 6.00pm until Sunday 7.00pm and at other times by arrangement.

   d.        [The child] may be collected from school or Child Care by either parent or the paternal grandmother [Ms Bostridge];

   e.        When the child commences school it is recommended that his time with his father extend from Friday 6.00pm until the commencement of school Tuesday.

   ii.        The parents are to exchange or relevant information about the child’s’ health and education;

   iii.       It is recommended that [the child] be assessed by a speech therapist if there is no improvement in his speech articulation by age 3 years;

   iv.        Neither parent is to consume alcohol or drugs any time the child is in their care nor allow the child to be exposed to other persons using drugs;

   v.         Neither parent nor partner are to engage in discussions about Court matters with the child;

   vi.        Neither parent nor partner, are to denigrate the other parent either directly, to the child or within the hearing of the child;

   vii.      Both parents to undertake a Parenting Orders Program at …;

   viii.     A copy of any Court Orders and this family report be made available to the child’s school, Child-are and any professional treating [Ms Smallwood];

   ix.       It is to be noted that should [Ms Smallwood] at any time become ill, the child is to be in the care of his father until such time as [Ms Smallwood] can provide a medical clearance that she is able to resume care of the child.

4. I have regard to the s 62G(2) family report prepared by Ms C, Family Consultant dated 31 March 2016.

Applications

1. Today the father was represented by Mr Frajsman, the mother was represented by Ms Jeans of counsel, and Ms Devine of counsel appeared on behalf of the independent children’s lawyer. The matter was heard intermittently throughout the day due to the heaviness of this duty list.

2. I note that the matter is listed for final hearing before me to commence on 21 November 2016 and estimated to take four days. In the proceedings before the court today the applicant father, in his Application in a Case filed 3 August 2016, seeks orders that the child live with him; that the mother undertakes and completes a psychiatric assessment; and that the mother complies with all drug screens as requested by the independent children’s lawyer. In her Response to the father’s application, the mother seeks that the father’s application be dismissed and that the Order dated 20 April 2016 remain in full force and effect. 

3. The order made on 20 April 2016 provides that the child reside with the mother and spend time and communicate with the father each alternate weekend from 10 am on Saturday to 6 pm on Sunday and on each alternate Sunday from 11 am till 7 pm. There are other provisions, the most relevant of which are that the mother undertake personal counselling as recommended by Ms C in the family report dated 31 March 2016, she undertake and complete a parenting course and that the mother and father comply within 24 hours of a request from the independent children’s lawyer for a random drug screen. It is also noted by the Court that “in the event that a party fails to attend a hearing or defaults in filing of documents or things required by him or her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party”.

4. The mother departed court prior to the conclusion of the proceedings.

Department of Health and Human Services

1. In the afternoon I heard evidence from a case worker from the Department of Health and Human Services (“the Department” or “DHHS”) at Suburb K, Ms B, as to her involvement with the family and, in particular, the mother from 29 July 2016 to date. Ms B was in the company of her team leader, Ms L. I have ordered that the telephone link with Ms B be transcribed.

2. Ms B says that she commenced her involvement with the mother on 29 July 2016 when a notification was received by the Department in relation to an alleged deterioration in the mother’s mental health.

3. Ms B met the mother on 1 August 2016 at M Hospital where the mother was an involuntary patient. The protective worker referred to a conversation with and imparted the diagnosis of Dr N, Psychiatrist. She was told that the mother was suffering from a borderline personality disorder, a panic disorder, an anxiety disorder and an addiction to benzodiazepines.

4. When the protective worker next saw the mother on 4 August 2016 she had been discharged from M Hospital.

5. An agreement was reached between the mother and the Department that the child would be placed in the care of the mother’s cousin, Ms O, who lives in Suburb P. It was in the context of Ms F having care of the child and attending a changeover that the father became aware that the mother was or had been an inpatient in a psychiatric facility.

6. The mother admits that on or about 29 July 2016 she consumed the drug, ice. The Department has requested that the mother undergo two supervised urine drug screens which the mother has done on 6 and 10 August 2016 respectively. The dates of the first test are available and are clear for all but benzodiazepine.

7. The position of DHHS is that, in the event that the child is placed in the unsupervised care of the mother for any time, consideration will be given by the Department to the institution of proceedings under child protection laws to have the child removed from the mother’s care.

8. The Department supports the residential placement of the child with the father for the time being. In this regard, Ms B undertook an assessment of the father’s living circumstances yesterday and find the circumstances to be adequate. Ms B has also met the paternal grandmother. Ms B informed the Court, by telephone link, as follows:

   [MS B]: In my assessment of the father, your Honour, he — there aren’t any child protection concerns in relation to him. And an assessment has also been conducted of his home environment, which is appropriate and equipped to meet the children’s ‑‑

   HER HONOUR: And when was that assessment made of his home environment?

   [MS B]: Yesterday, your Honour.

   HER HONOUR: Okay. So did you physically go to where he lives?

   [MS B]: Yes, your Honour. I did.

   HER HONOUR: Right. Okay. And you have taken into account the mother’s allegations of cyberstalking?

   [MS B]: Yes, I have, your Honour.

9. The evidence of the protective worker was received by me as an alternative and expeditious means of obtaining information other than by a s 67ZW response. I have regard to the evidence of the Department and place weight upon it, remembering, however, that it has not been tested by cross examination.

10. The mother’s position during the day altered from the application sought in her response. By mid-afternoon and following the information imparted by DHHS, the mother sought orders in the terms of Exhibit “M1”, which provides for the child to live week about between herself and the father with changeovers on Friday and for the mother to complete three supervised drug screens each week; and in the event “the mother fails to submit to one of the weekly screens or the results are positive for an illicit substance, the child is to be placed in the immediate care of the father, with time to be agreed by the parties in terms of the mother’s contact”. The mother was also seeking orders that would compel her to continue to attend upon persons she says she is currently consulting and who are described in her affidavit sworn or affirmed on 11 August 2016.

Discussion

1. I have regard to the primary considerations, being an assessment of whether it is in the interests of the child to have a relationship with each parent and what orders are required to protect the child from physical or emotional harm. Of these two considerations, the safety of the child has primacy.

2. There are several additional considerations to which I have regard insofar as they are relevant.

3. The child has always been in the primary care of the mother until, it appears, late July when she was hospitalised. Now DHHS indicate that they are supportive of the father assuming care of the child and the mother having regular time and communication with the child, providing that such time is fully and safely supervised and is not disruptive for the child’s day-to-day life in the father’s household. DHHS’ support for the father is very relevant. They have negotiated with the mother for the child to be cared for by someone other than herself. They say that they will consider proceedings in the Children’s Court if I return the child to the mother or provide for the mother to have unsupervised time with the child.

4. I take into account the impact of the change that these orders will bring about to the day-to-day care regime of the child. He is going from recently having been cared for full-time by the mother with regular time exercised by the father, to being in the temporary care of a family member and now to being placed in the full-time care of the father. Whilst in the full-time care of the father, he will be residing at the home of the paternal grandmother and he will have regular but limited time with the mother. This is a period of major changes for the child.

1. There is some doubt expressed on behalf of the mother as to her ability to travel for the purpose of spending time with the child. The mother lacks independent transport by way of a motor vehicle. It seems to me that it is highly desirable, if not essential, for the child’s wellbeing that he have at least one period of time with the mother in each week and optimally that would be twice a week, providing all is well with the mother’s mental health.

2. The matter was stood down late in the afternoon and when I returned to it after 5 pm this afternoon I was informed that the mother had left the court in an agitated state, expressing some intentions which had clearly caused the counsel for the independent children’s lawyer and the mother’s own counsel consternation.

3. The current carer of the child, Ms O, had been notified of the mother’s early departure from court. It is not clear what the mother will do or where she has gone. The evidence of Ms C is untested but these recent developments are not matters which are inconsistent with the observations of the mother by the family consultant. I appreciate that the last two weeks have been difficult for the mother and that she is upset and perhaps lacking in some understanding of how she finds herself all of sudden without the care of the child and an entitlement to spend time with him, which she would regard as meagre and wholly inadequate, having regard to the history of the matter.

4. Independently of the Department’s view, having regard to the evidence which is currently before the court, including the recent affidavit material of the mother and the father, I independently form the view that the child should at least temporarily be placed in the care of the father as that is a placement which I assess to be in the child’s best interests. In making this Order I have particular regard to the evidence pertaining to the mother’s parenting capacity. I also have regard to the need for the child to have a stable living environment. His care has been disrupted but will hopefully settle down until a final determination. This is only an interim measure and orders which will be in place until a final hearing.

5. I note that the matter is otherwise listed for final hearing to commence in late November 2016. It is agreed between counsel that the final hearing is unlikely to proceed on that date. It has been agreed that I will retain the date but proceed to list other matters that can occupy me in the very likely event that this matter does not require court time.

6. In order to monitor the matter, it is to be listed before me for mention on 13 October 2016 at 9 am when I will either vacate or confirm the final hearing on 21 November. The parties should note that the later they leave the reallocation of a final hearing in this matter the longer away the final hearing of this matter will be.

7. I stress the need for stable parenting arrangements for the child. However, it is also very important that he has the benefit of spending time with the mother. If this Order needs adjusting to enable the mother to spend time with the child effectively, the parties should raise that for determination on 13 October 2016. That means everyone should be notified in advance of what further orders (if any) are sought and the independent children’s lawyer should have published a preliminary view to the parties and sent a copy of that correspondence to my Chambers so I am forewarned that the matter may need up to one hour.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 August 2016.

Legal Associate:

Date:  7 September 2016