Cade and Blaser

[2011] FamCA 811

FAMILY COURT OF AUSTRALIA

CADE & BLASER [2011] FamCA 811

FAMILY LAW - CHILDREN – Parental responsibility – with whom a child shall live and spend time – undefended proceedings following father’s withdrawal – where father suffers from episodic depression and mental health issues – prior consent orders between parties for mother to have sole parental responsibility and for the children to live with her – consent orders for father to spend time with children following treatment from psychiatrist – Family violence order issued against father in protection of mother and all members of her household – where father’s conduct amounts to family violence causing the mother to feel harassed and unprotected – presumption of equal shared parental responsibility not applied - orders made for mother to have sole parental responsibility and for the children to live with the mother – orders made for children to spend time with father at the discretion of the mother

Family Law Act 1975 (Cth), s 61DA

APPLICANT: Ms Cade

RESPONDENT: Mr Blaser

FILE NUMBER: PAC 3223 of 2009

DATE DELIVERED: 11 October 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 21 July, 10 August and 6 September 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW
Ms Blackman

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dignan & Hanrahan

Mr Duncombe

Orders

1. That orders 4 and 5 of the orders made by consent on 12 March 2008 in the Federal Magistrates Court at Parramatta are discharged.

2. The balance of the orders made on 12 March 2008 are suspended for a period of 12 months.

3. During the period of suspension the following orders shall apply:

   3.1

   That the mother shall have sole parental responsibility for the children D born … July 1998, K born … July 2000 and T born

   
   

   … June 2004 (“the children”).

   3.2The children shall live with the mother.

   3.3The children shall spend time with the father at the discretion of the mother and in that regard it is intended that Notation B of these orders shall apply to the mother’s discretion.

   3.4For the purposes of order 3.3, the father shall communicate directly with the mother to make such arrangements as may be agreed by the parties for the children to spend time with him and the father shall not make arrangements or seek to make such arrangements with any of the child/children directly without the mother’s advance consent to those communications.

   3.5For the purposes of the child/children spending time with the father the father shall collect the child/children from a place nominated by the mother and return the child/children at the end of the agreed time to a place nominated by the mother.

   3.6Subject to orders 3.9 and 3.10 the parties shall communicate via email or SMS text message in respect of matter relating to the children and to make arrangements for the children to spend time with the father and each party shall advise the other of their respective email address within 7 days of the date of these orders and within 24 hours of any change to their email address.

   3.7The mother shall be at liberty to contact the child/children by telephone during the times in which they spend time with the father and the father shall ensure that when any or all of the children are spending time with him that he facilitates the mother’s telephone calls to the child/children as requested by the mother.

   3.8The father is hereby restrained from removing the child/children from the mother’s care or from removing the child/children from their respective schools unless the mother has prior to given her written consent to the father for such removal.  This is an order for the protection of the children.

   3.9Each parent shall ensure that the other parent is advised of any medical or other emergency concerning any of the children within one hour of such emergency or as soon as practicable and each parent shall be at liberty to consult with any medical practitioner that attends upon the child/children in those circumstances.

   3.10For the purposes of order 3.9 the parents shall communicate such emergencies by contacting the other parent by telephone.

   3.11Each parent shall refrain from making critical or derogatory remarks in relation to the other parent or other member of their household in the presence or hearing of the child/children and each parent shall do all things necessary to ensure that no other member of their household or family makes critical or derogatory remarks about the other parent in the presence or hearing of the child/children.

   3.12Each parent shall advise the other parent and keep the other parent advised of their current address, landline and mobile telephone number and advise the other parent of any changes to those contact details within 24 hours of such change occurring.

   3.13The parties are each restrained from allowing any of the children to view videos, DVD’s, games or other sound or visual media that has been classified by the Australian Classification Board as not being suitable for viewing by persons of the age or under the ages of the children, or of media restricted to viewing by persons over 18, when the child/children are in their care.

   3.14That until further order the father be and is hereby restrained from removing or attempting to remove any or all of the children from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing each of the children’s names on the Airport Watch List.

   THE COURT NOTES

   (A)It is not intended by order 3.14 that the mother or any member of the maternal family with the consent of the mother be restrained from accompanying any or all of the children on an overseas holiday from time to time.

   (B)The mother shall allow the children to spend time with the father if, in the circumstances of the communication from the father to the mother in that regard, the mother considers that the child/children will not be placed at any unacceptable risk of mental or physical abuse or neglect in being cared for by the father during that time and if the child/children express a wish to spend time with the father.

4. That the application is relisted at 9.30 am on 9 October 2012 for further directions.

5. Pursuant to s 65DA(2) and s 62B 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.

IT IS NOTED that publication of this judgment under the pseudonym Cade v Blaser is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)PAC3223 of 2009

Ms Cade

Applicant

And

Mr Blaser

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Cade and Mr Blaser were married in 1997 when she was 18 and he was 30. 

2. They had three children, D, K and T, now aged 13, 11 and seven years.

3. After about seven years the parents separated and later divorced.

4. The mother re-partnered and has had two more children

5. On 12 March 2008 final orders about the children were made by consent of both parents. 

6. The current application by the mother, which became undefended, is to vary those orders.

7. The withdrawal of the father from the proceedings does not reflect lack of interest in his children.

The consent orders of 12 March 2008

1. One of the issues in 2008 was the impact on the mother and children of the father’s episodic depression and admissions to hospital.

2. A report was provided by Dr R, Child Adult and Family Psychiatrist.  The recommendations in that report appear to have assisted the parties to come to an agreement.  These were the recommendations:

   I recommend that the children reside with [the mother], whom I believe is the more capable parent and who has good insight into the children’s needs and supports as well as understanding [the father’s] limitations.

   I recommend that the children have regular contact with [the father].  I suggest that they have fortnightly weekend contact.  I would recommend that the children have overnight contact from Friday to Sunday each alternate weekend.  In addition I recommend some contact on the alternate week either one evening or during the day of the alternate weekend.

   I recommend that neither parent denigrate the other parent in front of the children.

   I recommend that [the father] continue to have close monitoring by his psychiatrist.

   I recommend that there be a contingency plan such that should [the father] have another episode of severe depression that appropriate care and treatment can be applied.  It should support that if [the father] becomes ill that this not be seen as a reason to change or reduce his contact with the children.  If he has an episode of illness it should be regarded like any other episode of infirmity and that once the episode has finished then the previous arrangement of contact with the children should be resumed.  There should be understanding between the parents and [Mr T] with regard to this.

   I recommend that [the father] encourage the children to embrace [Mr T] as a stepfather and acknowledge his importance in their lives, even though he shouldn’t be seen to replace him as their father.

   I recommend that [Mr T] and [the mother] get some supportive counselling through a child and family service in order to help them manage the difficulties of a blended family as well as dealing with supporting a relationship with [the father].  Ideally, the mental health professionals involved should also be able to keep [the mother] informed and look for her support where needed. (emphasis added)

3. There was a report of Dr B, Consultant Psychiatrist[1].  The doctor stated the father to be suffering from a Major Depressive Episode of Recurrent Type.

   [1]  Exhibit ‘M4’.

4. The doctor considered that the father was “not fit for full time employment for the fore-see able [sic] future”.  No doubt this report also informed the consent orders made the following day.

5. The parties agreed that the mother would have sole parental responsibility for the children who would continue to live with her.

6. The father was to have responsibility for the day-to-day care, welfare and development of the children when they were in his care.

7. The periods of time when they would be in the care of the father appeared to be for alternate weekends, half school holidays and other special times.

8. However orders 4 and 5 do not support this interpretation of the orders.  These are the orders:

   4.That prior to the Father commencing any periods of spending time with the children in Order 3 he is to attend upon his treating psychiatrist at such frequency as recommended by the psychiatrist and for as long as the psychiatrist recommends.

   5.That the Father shall authorise his treating psychiatrist to provide to the Mother the following:

   i.Details of all appointments made by or with the psychiatrist, including the dates of each appointment made, the dates of each appointment attended and where any appointment made was not attended, the reason for the failure to attend;

   ii.Any recommendations of the psychiatrist. (emphasis added)

9. Order 4 contains a condition which the father must comply with before spending any time with the children.

10. The condition is that he not only attend upon his treating psychiatrist, but that he go on attending for as long as the psychiatrist recommends before he could spend any periods of time with the children.

11. This was probably not what the parties intended, given the recommendations.

12. Whatever the intention of either or both parents was, compliance with Order 4 was completely unrealistic.

13. Likewise for order 5, the mother asserts that the father has not complied.  The evidence does not permit such a finding.

14. The father says[2] that he has attended on his psychiatrist and followed his advice since 2007.  Further he says he authorised the doctor to provide any details of his attendance and treatment to the mother in accordance with the consent orders.

    [2]  Affidavit of the father filed 19 April 2010, par 5.

15. The father had an obligation to attend on his treating psychiatrist and act on his advice and to authorise release of information.

16. The matter is then in the hands of the psychiatrist, who was entitled to act on the authority or not in the interest of his patient.  Exhibit ‘M1’ provides some evidence that this is the case.  The exhibit is a letter sent by email from the father to the mother on 18 July 2011.  In relation to this issue it says this:

    The first matter is in regard to my medical treatment. for [sic] the last time hopefully im [sic] telling you that i am on a prescribed medication that I take daily to treat my ongoing medical condition. i se [sic] the doctor about every 2 months as a guide to see how im (sic) doing and to be provided with medication. The physician has not provided you with endless details simply because most people don’t like having their medical conditions paraded around for all to see and scutinize [sic].  i [sic] FELT THAT HE PROVIDED YOU WITH the pertinent information necessary for you to have in light of the matters between us regarding the kids. If you need to know the exact meds im [sic] on and dates then ask me and ill [sic] tell u [sic] its really that simple.

17. It is at least probable that the father has complied with both orders.  However the mother has been left uninformed and has felt increasingly worried that the mental health of the father has deteriorated.

18. The two relevant orders have frustrated the parenting arrangements and will be discharged.

Current application by the mother

1. The mother filed an application on 18 March 2010 to vary the consent orders. 

2. The thrust of the application was that face-to-face time between the father and children be supervised by a professional contact service and that telephone contact cease.

3. On 10 November 2010 that application was amended to seek an order that time spent between the father and the children be at the discretion of the mother.  The orders sought were clarified in a Minute of Order[3].

   [3]  Exhibit ‘A’.

4. The mother is asking the Court to trust that she will promote the relationship between the father and the children to the maximum extent consistent with their safety and well being.

5. D is presently spending alternate weekends and half school holidays with his father and the parties anticipate that this will continue.

6. K is presently refusing to see her father and the relationship between them is at breaking point.

7. T is not seeing her father on a regular basis but is expressing a wish to do so.

8. There is a current Apprehended Violence Order (“AVO”) in place for the protection of the mother and all members of her household.  The order will expire on 18 March 2012.

9. In June 2009 the mother moved from the western suburbs of Sydney to the Central Coast.  Orders 21 and 22 of the Consent Orders of 12 March 2008 said this:

   21.Each party is restrained from removing or causing the children to change schools.

   22.Each party is restrained from relocating the children outside the Sydney Metropolitan area.

10. The father went to the mother’s home to speak to her about the move.  The children were not present.  The mother reacted with hostility and said:  “I’ll be breaching you”.  The father brought a contravention application but did not pursue it.

11. The father was no doubt discouraged by the conduct of the mother and the consequent practical difficulties around travel for contact.

Who sould have Parental Responsibility

1. Section 61DA of the Family Law Act 1975 (“the Act”) states:

   (1)      When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child… 

   (2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) has engaged in: 

   (a)       abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)       family violence.

2. In this matter there is evidence of family violence having occurred since final orders were made in March 2008. 

3. The father has sent insulting obscene and abusive messages to the mother which she reported to the police[4].

   [4]  Affidavit of mother filed 13 July 2011, par 16.

4. In January 2010 the police acted on the complaint of the mother and advised the father that the mother considered his text messages to be offensive and harassing and he could be arrested and charged.

5. An interim AVO was granted in late February 2010. 

6. In mid March 2010, with the consent of the father, a final AVO was made at a local court. 

7. On the afternoon of that day the father collected D from school without reference to the mother, delivering him later.  By then she had telephoned the police.  D was upset that his father might get into trouble.  The mother stated the reason for her asking for no action to be taken against the father was that it would be “too traumatic for her son”.  This decision is to the credit of the mother.  She was encouraged by the police to report further breaches.

8. The mother states that since the making of the order the father has contacted her “less and less”.  In that sense the order has been effective.  Unfortunately the communication between the parties has diminished to the detriment of the children.  The father withdrew from participation in these proceedings.

9. The conduct of the father does amount to family violence causing the mother to feel harassed and unprotected.

10. That being so the presumption of equal shared parental responsibility does not apply and neither equal time or substantial and significant time should be ordered.  Since the children will be living with the mother, she should have sole parental responsibility.  However she should keep the father advised of the decisions she makes about long term issues involving the children.

11. I consider that the orders will provide respite for the children and will be in their best interest.

12. There is also the matter of the father’s communication with K[5].  An exert follows:

    [5]  Annexure ‘F’ to mother affidavit filed 13 July 2011.

    Father:  im sick of you being a spoilt little brat too.

    K:                  dont talk to me.

    Father:  ur a little bitch

    K:                  deal with it.

    Father:  no you deal with it.

    K:                  i am.

    Father:  im not putting up with any shit from you.

    K:                  then leave me alone and you wont have to.

    Father:  i will, go fuck off you little cow.

    K:                 no your the one who started talking to me.

13. The responses of the father are immature and destructive for K.  The father would be well advised to seek advice on the developmental needs of his 11 year old daughter and how to communicate constructively with her.

Conclusion

1. The parties entered into consent orders which have generated some difficulties.  The mother felt uninformed about the father’s health.  The father considered that he had taken all required steps to inform and reassure her.

2. The recent conduct of the father, especially his abusive messages, has stirred up fears in the mother that he is unwell.

3. The mother relocated to the Central Coast without first applying to vary the orders.  The father felt discouraged.

4. Accordingly the orders provide for 12 months of the new regime proposed.  If it proves to work well for the children the regime could become permanent.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 October 2011.

Associate:   

Date:  11 October 2011