Cann and Beacon and Ors
[2017] FCCA 3196
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANN & BEACON & ORS | [2017] FCCA 3196 |
| Catchwords: FAMILY LAW – Application for parenting orders for a four year old boy of same mother – maternal grandmother seeks time with child – parents and ICL oppose – mother and maternal grandmother estranged – maternal grandmother holds negative views of mother’s parenting capacity – held not in best interests of child to make orders for maternal grandmother to spend time with child other than by written consent of parents. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 68L, pt.VII |
| Cases cited: Champness & Hanson [2009] FamCAFC 96 Collu & Rinaldo [2010] FamCAFC 53 G & C [2006] FamCA 994 |
| Applicant: | MR CANN |
| First Respondent: | MS BEACON |
| Second Respondent: | MS A BEACON |
| Third Respondent: | MR STANLEY |
| File Number: | MLC 3906 of 2016 |
| Judgment of: | Judge Jones |
| Hearing dates: | 1-4 August 2017 & 25-26 October 2017 |
| Date of Last Submission: | 16 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the First Respondent: | Mr Turner |
| Solicitors for the First Respondent: | Battiato & Associates Lawyers Pty Ltd |
| Counsel for the Second Respondent: | Mr Blank |
| Solicitors for the Second Respondent: | Toner & May Legal |
| The Third Respondent appeared in person. |
| Counsel for the Independent Children’s Lawyer: | Ms Dart |
| Solicitors for the Independent Children’s Lawyer: | Tarella Law |
ORDERS
X
The Mother and the Father have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
X live with the Mother.
X spend time with the Father as agreed between the parents from time to time.
The Maternal Grandmother spend time and communicate with X only with the prior written consent of both parents.
Y
All previous parenting orders be discharged.
The Mother have sole parental responsibility for the child Y born (omitted) 2015 (“Y”).
The Mother is to notify the Father in writing of any decision made in the exercise of parental responsibility by email, as soon as practicable, but no later than 14 days after she has made the decision.
Y live with the Mother.
Commencing 23 December 2017, the Father spend time with Y as agreed between the parents, but in default of agreement as follows:
(a)for a period of three months following the making of these Orders:
(i)from 10am to 5pm each Friday; and
(ii)from 10am to 4pm on Christmas Eve in 2017;
(b)from the conclusion of Order 9(a) herein and until 1 July in the year before Y commences primary school, and being conditional upon the Father’s compliance with Order 13 herein:
(i)from 10am Friday to 10am Saturday each week; and
(ii)from 10am to 4pm on Father’s Day;
(c)commencing 2018 and until the year that Y commences primary school, the Father spend time with Y:
(i)from 5pm on Christmas Eve to 2pm on Christmas Day in odd-numbered years; and
(ii)from 2pm on Christmas Day to 10am on Boxing Day in even-numbered years;
(d)commencing 1 July in the year prior to Y commencing primary school, each alternate weekend from 3.30pm or the conclusion of day-care or pre-school on Friday, to 10am or the commencement of day-care or pre-school on Monday; and
(e)upon Y commencing primary school:
(i)each alternate weekend from the conclusion of school (or 5pm if it is not a day which Y attends school) on Friday to the commencement of school on Monday, with such time to be extended to Tuesday in the event that Monday is a public holiday or pupil free day, with such time to be suspended during school holiday periods and recommence on the first weekend of each new school term;
(ii)for the first week of the school holidays commencing from the conclusion of school on the last day of the school term until 5pm on the second Saturday thereafter; and
(iii)for alternate weeks of the Christmas school holiday period as follows:
(A)the holiday period is taken to commence at the conclusion of school on the last day of school and conclude at 4pm on the last Friday prior to the new school year;
(B)Y shall be with the mother for the first week in even years and with the father for the first week in odd years; and
(C)changeover shall occur each Friday at 4pm.
Upon Y commencing primary school and notwithstanding any Order to the contrary, Y shall spend the following special occasions in the care of each parent:
(a)with the Father from 5pm Christmas Eve to 10am Boxing Day in odd numbered years;
(b)with the Mother from 5pm Christmas Eve to 10am Boxing Day in even numbered years;
(c)Y shall not be in the Father’s care on a weekend that includes Mother’s Day. If Y is due to be in the Father’s care that weekend pursuant to these Orders, he is to be with her on the following weekend in lieu; and
(d)Y shall not be in the Mother’s care on a weekend that includes Father’s Day. If Y is due to be in the Mother’s care that weekend pursuant to these orders, she is to be with her on the following weekend in lieu.
Commencing on the Wednesday after Order 9(b) herein comes into effect, the Father communicate with Y by telephone or Skype as agreed between the parents, or in the absence of agreement, on Wednesday each week between 6pm and 6.30pm, provided that:
(a)until Y commences primary school, the Mother shall initiate the communication by telephoning the Father’s mobile phone, landline or Skype account, and the Mother shall monitor the communication to ensure that the Father’s communication with Y is appropriate;
(b)after Y commences primary school, Y shall initiate the communication and, so far as possible, communicate with the Father in her bedroom or other private space; and
(c)where Y has a school or extracurricular activity on the Wednesday evening, communication shall take place on the Tuesday of that week.
For the purposes of changeover:
(a)prior to Y commencing school, all changeover is to occur at Y’s day-care or pre-school, and in the event that Y is not attending day-care or pre-school on a particular day, changeover occur by the parents meeting at the (omitted) Police Station; and
(b)once Y commences school, all changeover will occur at Y’s school, and in the event that Y is not attending school on a particular day, then changeover occur by the parents meeting at the (omitted) Police Station.
The Father forthwith do all acts and things necessary to engage with a psychologist for the purpose of therapy to address parenting issues and concerns raised in the family report, and for this purpose:
(a)the Father to advise the Independent Children’s Lawyer (“the ICL”) of the name of the psychologist engaged by him and that the ICL have leave to provide a copy of the family report, Final Orders and the reasons for judgment to such psychologist;
(b)Y’s time and communication in Orders 9(b), (c), (d), 10 and 11 herein is conditional upon the Father’s engagement with the psychologist at such frequency and duration as recommended by the psychologist, and that in the event of any non-compliance, Y’s time with the Father shall remain as provided for at Order 9(a) herein; and
(c)the Father to do all acts and things necessary to provide the psychologist with an irrevocable authority to provide information to the ICL as to the dates of the Father’s attendance at therapy and whether he is complying with any recommendations made with respect to his frequency of his attendance.
The Mother is to ensure that the Father’s name is included as a parent on any day-care, pre-school or school enrolment for Y.
The Mother authorise the day-care, pre-school or school to provide to the Father, at his request and expense, all school reports, newsletters and other communications distributed to parents.
The Mother shall advise the Father of the details of Y’s medical practitioner and any other health professional that Y attends upon.
Each parent advise the other of any medical emergency involving Y, as soon as reasonably practicable.
Each parent be, and hereby are, restrained by injunction from consuming marijuana or any other illicit or illegal substance.
Each parent advise the other in writing of any change in their contact details, including residential address and mobile telephone number, within 48 hours of the change occurring.
For a period of two years following the making of these Orders:
(a)the Mother attend upon her general practitioner not less than once every two months for the purpose of reviewing her mental health and any medication prescribed; and
(b)the Mother to comply with all recommendations of her general practitioner with respect to:
(i)attendance upon a psychiatrist;
(ii)attendance upon a psychologist or counsellor; and/or
(iii)prescribed medication;
(c)the Mother do all acts and things necessary to provide her treating general practitioner with an irrevocable authority to provide information to the ICL as to the dates of her attendance and her compliance with any recommendations made.
The ICL have leave to provide to the Mother’s general practitioner:
(a)a copy of these Orders; and
(b)the report of Dr A dated 11 February 2016.
Within seven days of the date of these Orders, the Mother shall provide the name and contact details of her general practitioner to the ICL.
The Mother and Father be, and hereby are, restrained by injunction from:
(i)physically disciplining Y or permitting any other person to do so;
(ii)from saying negative, derogatory or mean things about the other parent, their family or partner in the presence or hearing of Y, or permitting any other person to do so.
The parents use a communication book to exchange information regarding Y.
Pursuant to s.68L of the Family Law Act 1975 (Cth) (“the Act”), the appointment of the ICL be extended for a period of six months from the making of these Orders for the purpose of assisting with the implementation of Orders.
Pursuant to s.65DA(2) of the Act, 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 Attachment A hereto and these particulars are included in these orders.
NOTATION
A.Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of those Orders are set out in Attachment A.
IT IS NOTED that publication of this judgment under the pseudonym Cann & Beacon & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3906 of 2016
| MR CANN |
Applicant
And
| MS BEACON |
First Respondent
| MS A BEACON |
Second Respondent
| MR STANLEY |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns the future parenting arrangements for:
a)Y born (omitted) 2015 (“Y”); and
b)X born (omitted) 2012 (“X”),
(collectively “the children”)
The First Respondent, Ms Beacon, is the mother of the children (“the Mother”). The Mother was born on (omitted) 1981 and is currently 36 years of age. The Mother holds a (qualifications omitted), and is engaged in home duties.
The Applicant, Mr Cann, is the father of Y (“Mr Cann”). Mr Cann was born on (omitted) 1971. Mr Cann is currently 46 years of age, and is engaged in home duties.
The Third Respondent, Mr Stanley, is the father of X (“Mr Stanley”). Mr Stanley was born on born (omitted) 1978. Mr Stanley is currently 39 years of age, and is employed as a (occupation omitted).
The Second Respondent, Ms A Beacon, born (omitted) 1952, is the maternal grandmother of the children (“the Maternal Grandmother”). The Maternal Grandmother is currently 65 years of age and is employed as a (occupation omitted).
In these proceedings, there are essentially two disputes in relation to parenting arrangements for the children. The first dispute is between Mr Cann and the Mother in relation to future parenting arrangements for Y. The second dispute is between the Mother and Mr Stanley on the one hand, and the Maternal Grandmother on the other, in relation to future parenting arrangements for X.
As Y and X are siblings, the evidence relevant to the determination of the dispute in relation to parenting arrangements for Y, and the dispute in relation to parenting arrangements for X, clearly overlap. However, for convenience, once I have identified the documentary evidence before the Court, the evidence and the statutory considerations relevant to the determination of the dispute in relation to parenting arrangements for Y will be dealt with first. I will then proceed to consider the evidence and make findings in relation to the future parenting arrangements for X.
The proceedings were conducted over the course of six days. The first four days occurred during an Albury circuit sitting, from 1-4 August 2017. The matter was then adjourned part-heard. The hearing resumed in Melbourne on 25-26 October 2017, with various parties attending by video-conference from the Albury Registry of this Court. At the conclusion of the hearing, the evidence in the proceedings was completed. Orders were then made for the filing and serving of written submissions.
Mr Cann relied on his trial affidavit filed on 14 July 2017 and his affidavit filed on 20 October 2017.
Mr Cann tendered the following exhibits:
a)Exhibit F1 – Victoria Police LEAP Court Outcomes Report relating to Mr Cann;
b)Exhibit F2 – Clinical records of Dr G from January and May 2017;
c)Exhibit F3 – Correspondence dated 28 July 2015 from Dr C of (omitted) Surgery to the Emergency Department of the (omitted) Hospital;
d)Exhibit F4 – Records from (omitted) Psychiatric Unit (“the (omitted) Psychiatric Unit”) dated 8 September 2010 and 1 September 2014;
e)Exhibit F5 – Victoria Police Initial Action Plan dated 6 October 2017;
f)Exhibit F6 – Photographs of Y; and
g)Exhibit F7 – Results of urinalysis screen undertaken by Mr Cann at (omitted) on 11 October 2017.
Mr Cann was cross-examined.
The Mother relied on her trial Affidavit filed on 13 July 2017, her affidavit filed on 24 October 2017 and an affidavit filed by Dr A (“Dr A”) on 13 February 2017.
The Mother tendered the following exhibits:
a)Exhibit M1 – The Mother’s proposed parenting plan; and
b)Exhibit M2 – Case note prepared by the Department of Health and Human Services (“the DHHS”) dated 11 October 2017.
The Mother was cross-examined.
The Maternal Grandmother relied on her affidavits filed on 6 February 2017 and 10 October 2017.
The Maternal Grandmother tendered the following exhibits:
a)Exhibit SR1 – Documents produced on 30 September 2016 by the DHHS, Folder 4 of 5;
b)Exhibit SR2 – Documents produced by the (omitted) Psychiatric Unit regarding the Mother;
c)Exhibit SR3 – Bundle of documents containing the Maternal Grandmother’s handwritten notes produced by the (omitted) Psychiatric Unit; and
d)Exhibit SR4 – Clinical records from the (omitted) Hospital dated 7 October 2017.
The Maternal Grandmother was cross-examined.
Mr Stanley relied on his affidavit filed on 9 February 2017. Mr Stanley was cross-examined.
The Independent Children’s Lawyer (“the ICL”) tendered the following exhibits:
a)Exhibit ICL1 – Extracts from Mr Cann and the Mother’s communication book;
b)Exhibit ICL2 – Document prepared by Mr Cann and Ms A (“Ms A”);
c)Exhibit ICL3 – Document produced by the DHHS titled “Child/Young Person’s Profile” dated 22 September 2016;
d)Exhibit ICL4 – Various clinical records from the (omitted) Medical Clinic;
e)Exhibit ICL5 – Annotated photographs of Y taken by Mr Cann;
f)Exhibit ICL6 – LEAP Victoria Police records relating to Mr Cann dated 26 April 2013;
g)Exhibit ICL7 – LEAP Victoria Police records relating to Mr Cann and the Mother dated 29 June 2015;
h)Exhibit ICL8 – Correspondence from Mr B to Dr K dated 3 May 2016;
i)Exhibit ICL9 – Clinical records relating to the Mother between 26 March 2003 and 17 May 2007, and correspondence from Ms J to Dr D dated 8 January 2009;
j)Exhibit ICL10 – A “First Visit Case Note” prepared by the DHHS dated 10 October 2017; and
k)Exhibit ICL11 – The family report prepared by family consultant, Ms M, dated 8 December 2016.
The Parties’ Proposed Orders
The Independent Children’s Lawyer and the Mother propose the following parenting orders:
X
1. That the Mother and father have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
2. That X live with the Mother.
3. That X spend time with the father as agreed between the parties from time to time.
4. That the maternal grandmother be, and hereby is, restrained by injunction from spending time or communicating with X without the prior written consent of both parents.
Y
1. That all previous parenting orders be discharged.
2. That the Mother have sole parental responsibility for the child, Y born (omitted) 2015 (“Y”).
3. That the Mother is to notify the father in writing of any decision made in exercise of parental responsibility, by email, as soon as practicable after such decision is made.
4. That Y live with the Mother.
5. That Y spend time with the father as agreed between the parties, but in default of agreement as follows:
a. For a period of 3 months following the making of these orders:
i. From 11 am to 1 pm each Friday;
ii. From 10 am to 4 pm on Christmas Eve.
b. From the conclusion of order 1, and until Y commences primary school and conditional upon the father’s compliance with order 7 herein:
i. From 10 am Friday to 10 am Saturday each week provided that the Mother is at liberty to suspend such time on a maximum of 4 occasions per year upon provision of 14 days written notice to the father;
ii. From 10 am to 4 pm on Father’s Day; and
iii. From 10 am to 4 pm on Christmas Eve.
c. That upon Y commencing primary school until the conclusion of her first year of primary school:
i. Each alternate weekend from the conclusion of school (or 5 pm if it is not a day which Y attends school) on Friday to 4 pm Sunday.
d. That upon Y commencing year 1:
i. Each alternate weekend from the conclusion of school (or 5 pm if it is not a day which Y attends school) on Friday to the commencement of school on Monday, with such time to be extended to Tuesday in the event that Monday is a public holiday or pupil free day, with such time to be suspended during school holiday periods and recommence on the first weekend of each new school term;
ii. For the first week of the school holidays commencing from the conclusion of school on the last day of the school term until 5 pm on the second Saturday thereafter;
iii. For alternate weeks of the Christmas school holiday period as follows:
(A) The holiday period is taken to commence at the conclusion of school on the last day of school and conclude at 4 pm on the last Friday prior to the new school year;
(B) That Y shall be with the Mother for the first week in even years and with the father for the first week in odd years;
(C) That changeover shall occur each Friday at 4 pm.
6. That upon Y commencing primary school and notwithstanding any order to the contrary, Y shall spend the following special occasions in the care of each parent:
a. With the Father from 5 pm Christmas Eve to 10 am Boxing Day in odd numbered years;
b. With the Mother from 5 pm Christmas Eve to 10 am Boxing Day in even numbered years;
c. That Y shall not be in the father’s care on a weekend that includes Mother’s Day. If Y is due to be in the father’s care that weekend pursuant to these orders, he is to be with her on the following weekend in lieu.
d. That Y shall not be in the Mother’s care on a weekend that includes Father’s Day. If Y is due to be in the Mother’s care that weekend pursuant to these orders, she is to be with her on the following weekend in lieu.
7. That the father forthwith do all acts and things necessary to engage with a psychologist for the purpose of therapy to address parenting issues and concerns raised in the Family Report and for this purpose:
a. The father to advise the ICL of the name of the psychologist engaged by him and that the psychologist have leave to provided [sic] a copy of the Family Report, Final Orders and the Reasons for Judgment to such psychologist;
b. That Y’s time in order 5(b), (c), (d) and 6 is conditional upon the father’s engagement with the psychologist at such frequency and duration as recommended by the psychologist and that in the event of any non-compliance, Y’s time with the father shall remain as provided for at order 5(a).
c. That the Father to do all acts and things necessary to provide the psychologist with a irrevocable authority to provide information to the ICL as to the dates of the father’s attendance at therapy and whether he is complying with any recommendations made with respect to his frequency of his attendance.
8. That the Mother is to ensure that the father’s name is included as a parent on any day care, pre-school or school enrolment for Y.
9. The Mother authorise the day-care, pre-school or school to provide to the father, at his request and expense, all school reports, circulars and other communications distributed to parents.
10. That for the purposes of changeover:
a. Wherever practicable, changeover is to occur at Y’s day-care, pre-school or school from time to time;
b. Changeover at all other times is to otherwise occur at (omitted) Police Station.
11. That the parents be, and hereby are, restrained from consuming marijuana or any other illicit or illegal substance.
12. That for a period of 2 years following the making of these orders:
a. The Mother to attend upon her GP not less than once every alternate month for the purpose of reviewing her mental health and any medication prescribed;
b. The Mother to comply with all recommendations of her GP with respect to:
i. Attendance upon a psychiatrist;
ii. Attendance upon a psychologist or counsellor; and/or
iii. Prescribed medication.
13. That the ICL have leave to provide to the Mother’s General Practitioner:
a. A copy of these orders; and
b. The report of Dr A, dated 11 February 2016.
14. That within seven days of the date of these Orders, the Mother shall provide the name and contact details of her General Practitioner to the ICL.
15. That the Mother and father be, and hereby are restrained from:
a. Physically disciplining Y or permitting any other person to do so;
b. From saying negative, derogatory or mean things about the other parent, their family or partner in the presence or hearing of Y.
16. That the Mother and father are to notify each other as soon as practicable in the event of:
a. Any change to their address, mobile number and/or email address;
b. Any medical or other emergency concerning Y.
17. That the parties use a communication book to exchange information regarding Y.
18. That the maternal grandmother be, and hereby is, restrained from contacting and/or attending any day care, pre-school, school and/or extra-curricular activity that Y attends or is engaged in from time to time without the prior written consent of the Mother.
19. That pursuant to s 68L the appointment of the ICL be extended for a period of 4 months from the making of these orders for the purpose of assisting with the implementation of orders
Mr Cann proposes the following parenting orders in relation to Y:
1. Until 30 June in the year prior to the child Y born (omitted) 2015 commencing school, the child live with the father:-
1.1 From 3.30pm or conclusion of day care/preschool Friday until 10.30am or commencement of day care/preschool Tuesday each week;
1.2 From 4pm Christmas Eve until 3pm Christmas Day in even years;
1.3 From 3pm Christmas Day until 4pm Boxing Day in odd years;
1.4 From 5pm on 7 June until 12 midday 8 June unless the child is already in the father’s care;
1.5 At any other time as agreed between the parties in writing; and
1.6 The child’s time with the father be suspended from 3.30pm on the Friday prior to Mother’s Day until 10am on the Monday after Mother’s Day.
2. Until 30 June in the year prior to the child commencing school, the child live with the mother at all other times.
3. Commencing 1 July in the year prior to the child commencing school and until 31 December of that year, the child live with the mother and spend time with the father:
3.1 From 3.30pm or conclusion of daycare/preschool Friday until 4pm Sunday each week;
3.2 From 4pm Christmas Eve until 3pm Christmas Day if it is an odd year;
3.3 From 3pm Christmas Day until 4pm Boxing Day if it is an even year;
3.4 From 5pm Friday until 10am Monday on Father’s Day weekend;
3.5 At any other time as agreed between the parties in writing.
4. Once the child commences school, the child live with the mother and spend time with the father:
4.1 From 3.30pm or the conclusion of school Friday until 4pm Sunday each alternate week;
4.2 For half of all Victorian school term holidays from after school on the last Friday of school term until 5pm on the middle Saturday;
4.2 For each alternate week during Christmas school holidays from 5pm on Saturday until 5pm the Saturday immediately following with the father to have the first week;
4.4 From 4pm Christmas Eve until 3pm Christmas Day in odd years;
4.5 From 3pm Christmas Day until 4pm Boxing Day in even years;
4.6 For Father’s Day from after school Friday until commencement of school on the Monday after Father’s Day;
4.7 At any other time as agreed between the parties in writing.
5. For changeover:
5.1 Prior to the child commencing school, all changeover is to occur at the child’s day care or preschool and if the child is not attending day care or preschool on a particular day then changeover in that event will occur by the parties meeting at the (omitted) police station;
5.2 Once the child commences school all changeover will occur at the child’s school, and if the child is not attending school on a particular day then changeover in that event will occur with the parties meeting at the (omitted) police station.
6. Commencing 30 June in the year prior to the child commencing school the child have telephone contact with the father on Monday, Wednesday and Friday each week between 6pm and 6.30pm by the father telephoning the mother’s mobile telephone.
7. The mother is to elect the school the child is to attend and will advise the name of the school to the father in writing by text message within seven days of the child being enrolled in that school.
8. Each party is authorised by these Orders to obtain the child’s medical information including all information from the child’s treating Doctor, specialist, and any hospital upon whom the child attends.
9. Each party is authorised by these Orders to obtain the child’s day care, preschool and school information including but not limited to school reports, newsletters and photograph order forms.
10. Each party is authorised to attend daycare, preschool and school events at which parents normally attend.
11. The mother and father are to advise each other in writing within seven days of these orders of the details of the child’s treating medical practitioner and any other health professional upon whom the child attends and will advise each other in writing within forty eight hours of any change in the medical professionals upon whom the child attends.
12. Each parent advise the other of any medical emergency involving the child as soon as reasonably practicable.
13. Each parent advise the other in writing of any change in their contact details including address and mobile telephone number within forty eight hours of the change occurring.
14. The parties use a communication book to exchange information regarding Y.
15. Within seven days of the date of these Orders the mother provide to the Independent Children’s Lawyer the name and contact details of her treating Doctor.
16. For a period of two years from the date of these orders:
16.1 The mother attend on her treating medical practitioner not less than once every alternate month for the purpose of reviewing her mental health and any medication prescribed; and
16.2 The mother to comply with all recommendations of her treating medical practitioner with respect to attendance on a psychiatrist, attendance on a psychologist/counsellor, and/or prescribed medication; and
16.3 The mother is to do all acts and things necessary to provide her treating Doctor with an irrevocable authority to provide information to the Independent Children’s Lawyer as to the dates of her attendance whether she is complying with any recommendations made.
17. The Independent Children’s Lawyer have leave to provide the mother’s treating practitioner with a copy of the Final Orders, the report of Dr A dated 11 February 2016 and the Family Report.
18. The mother be restrained from consuming any illicit substances.
19. The father is to engage with his psychologist Ms D of (omitted) Psychology for the purpose of therapy to address parenting issues and issues raised in the Family Report at such frequency and duration as recommended by that psychologist and for this purpose:
19.1 The Independent Children’s Lawyer has leave to provide a copy of the Family Report, Final Orders and Reasons for Judgement to the psychologist;
19.2 The father is to do all acts and things necessary to provide the psychologist with an irrevocable authority to provide information to the Independent Children’s Lawyer as to the dates of the father’s attendance at therapy and whether he is complying with any recommendations made with respect to the frequency of his attendance.
20. That pursuant to s68L of the Family Law Act the appointment of the Independent Children’s Lawyer be extended for a period of 4 months from the making of these orders for the purpose of assisting with the implementation of the orders.
21. The mother and father are restrained from:
21.1 Physically disciplining Y or permitting any other person to do so;
21.2 Saying negative, derogatory or mean things about the other parent, their family or partner in the presence or hearing of Y.
22. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
23. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The Maternal Grandmother proposes the following orders in relation to X:
1. The child, X born (omitted) 2012 (“X”) spend time with and communicate with the Maternal Grandmother as follows:
a) Once per month, for a maximum of two hours, such time to be facilitated by the Berry Street Children’s Contact Service in (omitted) (“the Contact Service”), at times to be agreed and subject to the times that may be accommodated by the Contact Service, for a minimum of four occasions or as may be otherwise directed by the Contact Service.
b) Thereafter, for two hours, each calendar month, from 11:00am until 1:00pm, or as otherwise agreed, such time to take place in (omitted) when X is in the care of the Father.
c) Such further or other times as may be agreed between the Maternal Grandmother, the Mother and the Father, Mr Stanley.
2. The Maternal Grandmother be at liberty to send cards and gifts to X for his birthday, Christmas and Easter, care of the Father with the Father to provide the Maternal Grandmother of his nominated postal address and keep the Maternal Grandmother updated of his address.
3. The Maternal Grandmother be at liberty to communicate with X, no less than once per month, no earlier than four months from the date of these Orders, by telephone, Skype or Facetime, when X is in the care of the Father, at times as may be agreed to.
4. Alternatively, if time at a Contact Service is not ordered, the Maternal Grandmother be at liberty to communicate with X by telephone, Skype or Facetime, once per month, when X is in the care of the Father, at times as may be agreed to between the Father and the Maternal Grandmother.
Mr Stanley supports the orders proposed by the Mother and the Independent Children’s Lawyer in relation to X.
Background
With respect to X, the background in relation to the Mother’s relationship with Mr Stanley, the birth of X and his parents’ present cooperative parenting arrangements, is summarised below. It is evident that neither the Mother or Mr Stanley would have sought parenting orders, because of their cooperative parenting arrangements, save for the fact that an Application in a Case was filed by the Maternal Grandmother, seeking to be joined to the proceedings and seeking orders for time with X.
The Mother and Mr Stanley commenced their relationship in 2009, cohabited in 2010 and separated in 2013. Since this time, X has lived in the primary care of the Mother and spent regular time with his father, Mr Stanley. After the parents’ separation, the Mother and X lived with the Maternal Grandmother until January 2015.
The relationship between Mr Cann and the Mother was very short lived. On any view, the relationship and the separation was volatile. Mr Cann and the Mother commenced their relationship in or around (omitted) 2014 and commenced cohabitation in (omitted) 2015. Y was born very shortly thereafter, on (omitted) 2015.
The parties separated on 15 September 2015 when the Mother left Mr Cann’s house with X, having been told by Mr Cann to do so.
Prior to separation the following incidents occurred.
On (omitted) 2014, the Mother was admitted to the (omitted) Psychiatric Unit and discharged on (omitted) 2014.
After discharge, the Mother spent some time at Mr Cann’s house, until she moved into a cottage at (omitted) with X. There seems no dispute that Mr Cann assisted the Mother in finding this accommodation.
After the birth of Y, the Mother, Y and X lived together in Mr Cann’s house. The Mother breastfed Y for around two weeks but experienced difficulties breastfeeding thereafter. Mr Cann concedes that the Mother was the primary caregiver of Y for the first two weeks after her birth, but not thereafter. Mr Cann says that he gave up working and then became the primary care giver for Y. Mr Cann maintains that he has remained the primary care giver of Y.
On 16 July 2015, the Mother commenced looking for alternative accommodation. The Mother says she did so because she and Mr Cann were constantly arguing and because of his coercive controlling behaviour. Mr Cann denies that this and says the Mother was looking for alternative accommodation close by because he was in the process of renovating his home.
After Y’s birth, various incidents were recorded in a “Child/Young Person’s Profile” created by DHHS on 22 September 2016 in respect of Y (Exhibit ICL3). In relation to an intake period 29 June 2015 to 26 February 2016, a report writer stated (at 8-9):
On the 28/06/2015 a report was received in relation to Y and X being exposed to a family violence incident between Mr Cann and [the Mother], the incident being where both parents had consumed alcohol and engaged in a verbal argument regarding the parenting of the children.
Concerns around this situation was that [the Mother] chose to remain away from the home of residence resulting in being parted from her infant daughter and Mr Cann choosing to leave the infant baby with a ‘friend’ and refusing [the Mother] entry to the home. A safety plan was implemented for the weekend however neither parents followed the plan, they reunited that weekend with the children. Police attended.
…
On 30/06/2015 Mr Cann assisted [the Mother] in attending a local General Practitioner where she presented as teary and crying throughout the appointment. At this time it was identified that [the Mother] was suffering from Post Natal Depression (PND).
When the parties were both interviewed again by Child Protection, the Father was dishonest about the compliance with the safety plan, indicating it had been complied with then when challenged admitted to partially going against it however further discussion revealed that the father intentionally went against the plan and took the children to have contact with [the Mother]. Mr Cann also admitted to having embellished certain details about incidents discussed on the first home visit.
[The Mother] talked about feeling that everything had been her fault, wants to retract some of her statements feeling that things she previously assessed as ‘controlling’ were really ‘concern’ of the father. Father spoke about how the mother had taken responsibility for her mental health which had ‘solved’ everything and was keen for Child Protection to approve the family residing back together again. Father demonstrated controlling behaviours throughout the visit. Mr Cann stated that he took control of the situation to ensure that [the Mother] adhered to a mental health care plan.
On the 21/07/2015 with parents reunited and minimising the concerns around family violence Child Protection sought to remain involved and sought an Interim Accommodation Order (IAO) with the Maternal Grandmother however the court returned the children to the Parents care on an IAO to Mr Cann to allow the children to remain with Parents whilst Child Protection engaged the family with support services and continued their assessments.
On the 17/08/2015 An Interim Protection Order (IPO) was granted with Y and X to reside with [the Mother] at the home of Mr Cann in (omitted).
…
It is to be noted that on (omitted) 2015, the Mother was admitted to the (omitted) Psychiatric Unit. She was discharged a few days later.
The Mother’s evidence in relation to the events around 29 June 2015 was that she sought refuge in a neighbour’s house because Mr Cann was intoxicated and she was scared to return to the house. She says that when she did return, Mr Cann had locked the doors to the home and did not allow her back into the home to see Y. She said she called the police to undertake a welfare check on Y. She says that when she returned the next morning Y was not at home, and Mr Cann told her that Y she was across the road at the neighbour’s house, but that the neighbours would not give Y to the Mother until he “gave them the okay.”
This incident was the subject of a Sub-Incident Summary Report dated 29 June 2015 (Exhibit ICL7). The police noted that a DHHS referral was made due to arguments over a three year old child and a baby. However, no further action was taken by the police in the absence of violence, threats and assaults.
An Interim Protection Order (“IPO”) was granted for Y and X to live with the Mother at the home of Mr Cann on 17 August 2015. A DHHS report writer discussed subsequent events under the IPO as follows (Exhibit ICL3 at 9-10):
On the 15/09/2015 Mr Cann visited the Department of Health and Human Services (DoHHS) office and stated that he has asked [the Mother] to leave the home with her 3 year old son X, he advised that he wanted her out by tonight. He advised that he does not like the way she speaks to him and talked of her suffering mood swings. He advised that the house is ‘his’ and is now ‘Y’s home.’ He indicated that their relationship had not been stable for some time. Mr Cann believed at this time that Y should not be with her Mother alone however there were no safety concerns for X. He advised that he believed [the Mother] would struggle with the care of 2 children on her own. Mr Cann was receptive to giving [the Mother] contact as supervised by himself.
On this day [the Mother] advised that Mr Cann had asked her to leave the house with her son X. [The Mother] advised that she didn’t enjoy residing with Mr Cann as there was no room in the small home for a family, she talked of wanting to reside elsewhere earlier in the relationship nearby where they could share the care of their new baby, however was encouraged by Mr Cann and Child Protection to reside together. It seems that [the Mother] only reconciled to Mr Cann’s home upon feeling defeated by the system. Although [the Mother] was under stress at this time she was able to link with the support services required and sourced her own emergency accommodation.
[The Mother] was advising Mr Cann was not nurturing of X and she felt she was a victim of family violence. She advised that at no point was she and X ‘welcomed’ into his home.
On the 18/09/2015 a meeting was held with both parents to attempt to make some suitable contact arrangements for Y. [The Mother] was offered contact with Y from 12pm – 5pm Saturday and Sunday however then advised later that day that she felt that was too much for herself, she talked of knowing her mental health and acknowledged that she needed to sleep over the weekend. X was with his Father for the weekend meaning she was ‘child free’. She advised that she would only have Y on the Sunday from 2pm til 4pm. It was assessed at this time that [the Mother] was still suffering from symptoms of Post Natal Depression.
Concerns were held at this time that [the Mother] was not developing a close bond and attachment to Y, it appeared that she was preoccupied wither [sic] current situation of being transient, seeking suitable accommodation. She was observed to be preoccupied with developing a parenting agreement for shared care of Y rather than spending time with Y.
…
On the 5/10/2015 the IPO was varied for Y to reside with her Father, Mr Cann. All were in agreeance that it was best for Y to remain where she was given she was a young infant and for X to continue to reside with [the Mother]. [The Mother] was offered contact from minimum of 3 days per week and at additional times as agreed…
…
On the 14/10/2015 I conducted a home visit to facilitate the contact handover of Y, during this time I observed Mr Cann to speak to [the Mother] loudly and rudely, I advised him to cease this behaviour. He instructed [the Mother] to ‘wait over there’ when she approached his front gate to collect Y for her contact visit. A few days prior Mr Cann had ceased the contact visit for [the Mother] for no valid reason, he advised [the Mother] via text message that there would be no more contact until Child Protection had visited which was not valid.
On the 16/10/2015 [the Mother] and X moved into a property in (omitted).
On the 19/10/2015 it was assessed by the DoHHS that contact with Y should increase to overnight. [The Mother] was showing significant improvement in her mental health presentation including an improvement in interactions with Y, [the Mother] was seeking increased contact with Y on a daily basis and was observed to be showing warmth and an attachment to Y. Attempts were made to reach an agreement however Mr Cann would not agree to overnights on this week stating he had concerns for Y in the care of [the Mother].
Mr Cann stated he had concerns with [the Mother’s] mental health status, her parenting of 2 children and that she would not care for Y adequately such as bathe her or cut her nails.
On the 26/10/2015 [the Mother] again requested overnight contact with Y. I approached Mr Cann in regards to this stating that the DoHHS have assessed it suitable for [the Mother] to have overnight contact with Y, we had no concerns. No changes in contact arrangements could be made without all parties agreeing given the current court order was ‘as agreed between the parties’. Mr Cann did not agree to overnights stating ‘maybe next week’.
On the 04/11/2015 Mr Cann agreed to overnight contact for Y and [the Mother]. This occurred and no concerns were held…
It appeared that the parents had tried to be amicable in order to support Y [sic] contact with her Mother and with her sibling X however it appears that these attempts only result in further conflict and tension. The parents are still quite hostile to each other, the hand over of Y occurs at the office of the DoHHS. Hostility has been observed between both parents during pick up and drop off of Y at the DoHHS office. Parents still cannot manage to pick up and drop off without exchanging words of criticism.
…
Mother has engaged with Comm. MH who advised mother initially had post natal depression, however they have no concerns for her MH nor her care of the children…
By the end of November 2015, Y spent three overnights in the Mother’s care each week.
Mr Cann gave evidence that it was his view, when DHHS workers were attempting to convince him that the Mother should spend more time with Y, they were not acting in the best interests of Y. Mr Cann claims that the DHHS workers said they wanted to give the Mother more time with Y because the Mother would have a further breakdown. Mr Cann says they threatened him with court proceedings if he did not agree to their proposals. Mr Cann said he had been given advice by the maternal health nurse that the Mother should only be having supervised time with Y.
I find Mr Cann’s evidence that employees of the DHHS would adopt a strategy that involved placing a child in the parent’s care so the parent would have a further breakdown, to be extraordinary and completely implausible. Furthermore, his evidence about the maternal health nurse’s advice is not supported by the DHHS record of consultation with the maternal health nurse (outlined below). In my opinion, Mr Cann’s evidence has been given in order to support his belief he has expressed to the family consultant and in his oral evidence that, when the DHHS decided the Mother should spend more time with Y, they were biased and/or not acting in Y’s best interest.
Mr Cann denied that he was hostile at the changeovers held at the DHHS offices. Mr Cann said it was the Mother who was hostile, and that he did not contribute to the hostility.
On 24 February 2016, consent orders were made by the Wangaratta Magistrates’ Court that the parents retain equal shared parental responsibility for Y, and that Y spend time with the Mother from 10.30am on Tuesday to 3.30pm on Friday, and that Mr Cann spend time with Y from 3.30pm on Friday to 10.30am on Monday.[1] Although the orders provide that Y spend time in Mr Cann’s care, the parties have treated the orders as if they provided Y spend time in Mr Cann’s care until 10.30am Tuesday. These live-with arrangements have remained in place to date.
[1] Affidavit of Mr Cann filed on 14 July 2017, Annexure D.
After the Mother was told by Mr Cann to leave his house at (omitted) in September 2015, the Mother moved into a caravan park for approximately one month. The Mother then moved into a house in (omitted) with the assistance of various support services. The Mother presently lives in a three-bedroom house in (omitted), which she has lived in since November 2016.
Issues raised in respect of parenting arrangements for Y
Mr Cann argues that Y is not safe from physical abuse or harm in the Mother’s care. Mr Cann attributes this to the Mother’s mental health, the evidence he has collected about the excessive bruising, marks, and cuts Y suffers when in the Mother’s care, as well as the Mother’s failure to provide Y with proper nourishment and general care. In addition, Mr Cann has made and continues to maintain a very serious allegation that the Mother will harm Y’s genitals, either because she will sexually abuse Y or for an ulterior motive. The allegations by Mr Cann about the Mother’s parental care are dealt with below.
Mr Cann proposes that the present parenting arrangements (which have been in place since February 2016), continue until 30 June in the year prior to Y commencing school, whereupon Y shall live in the primary care of the Mother, and spend each weekend with Mr Cann, as well as special occasions. Mr Cann then proposes that upon Y commencing school, Y continue to live in the primary care of the Mother, and spend alternate weekends with him during school terms as well as half of the school holidays and special occasions.
The Mother argues that Mr Cann’s persistent view that Y is not safe in her care, and that she would physically harm Y, is not supported by any evidence. The Mother argues that Mr Cann has continually engaged in conduct designed to undermine her parental capacity, and thereby assert his control both over her and Y. The Mother argues that there is an unacceptable risk of Y being subject to emotional abuse in the care of Mr Cann because of his unsubstantiated beliefs that Y is not safe in her care, which he continues to act on. The Mother argues that her mental health is stable, and has been so since her last admission to the (omitted) Psychiatric Unit in (omitted) 2015, when she says she suffered Postnatal Depression. The Mother says that she has engaged with community health services, and regularly attends her general practitioner in relation to her mental health issues.
The Mother and the ICL propose parenting orders under which Y lives with the Mother and spends time with Mr Cann as agreed or, in the absence of agreement, for a period of three months each Friday for two hours, and during the day on Christmas Eve. Following this period of time, and until Y commences primary school and subject to Mr Cann engaging with a psychologist for the purpose of therapy to address parenting issues and concerns raised in the family report, it is proposed that Y spend time with Mr Cann each week from Friday to Saturday, provided the Mother is at liberty to suspend such time on a maximum of four occasions each year (subject to 14 days written notice), and on special occasions. It is proposed that upon Y commencing, primary school, she spend time with Mr Cann each alternate weekend and then, upon Y commencing year one, she spend time with Mr Cann on alternate weekends from Friday after school to Monday before school, the first week of school holidays, as well as special occasions.
The Mother’s mental health
There are two aspects to Mr Cann’s evidence about the risks because of the Mother’s mental health. First, Mr Cann relies on the Mother’s acute mental health episodes, which Mr Cann says occurred because the Mother suffers from a Bipolar Affective Disorder. Second, Mr Cann expressed concerns, and continues to express those concerns, that the Mother may sexually abuse Y, or harm Y’s genitals for an ulterior motive. I shall consider the evidence regarding the Mother’s mental health first.
The Mother has experienced three separate acute episodes of mental instability and ill-health in (omitted) 2010, (omitted) 2014 and (omitted) 2015. On each occasion, the Mother was admitted to the (omitted) Psychiatric Unit for varying periods of time, and discharged when her mental health was assessed as having been stabilised.
On (omitted) 2010, the Mother was admitted to the (omitted) Psychiatric Unit. The discharge summary dated 8 September 2010 (Exhibit F4) states that the Mother was transferred from (omitted) Hospital to the (omitted) Psychiatric Unit after being admitted for acute psychosis associated with substance use, and was commenced on olanzapine. It is noted that the Mother was initially taken to (omitted) Hospital by her partner due to his concerns about her behaviour. The discharge summary records the Mother as presenting as untidy, dressed in smelly clothes, irritable and, uncooperative, that her mood was labile and affect restricted, and that her speech was rapid. It notes, “[n]il perceptual abnormality evident. Loosening of associations. Delusional. Insightless.” The Mother gave evidence that, as far as she could recall, the record of her presentation on admission is correct.
On (omitted) 2014, the Mother was admitted to the (omitted) Psychiatric Unit. The discharge notification dated 1 September 2014 (Exhibit F4) states, under “reason for admission”, that the Mother was:
… referred for admission after review by CMHS Treating Psychiatrist for deterioration of mental state associated with medication non adherence. [The Mother] had recently re-engaged with CMHS for the previous week after referral to services by her mother on background of mental state change over preceeding [sic] few weeks. This was characterised by heightened activity levels; “racing” thoughts; perceptual disturbance and disturbed sleep/apetite. [The Mother] had also formed a new relationship and had been using increased amounts of alcohol and cannabis…
The discharge notification states that the Mother “is known to this (omitted) through one previous inpatient admission… Dx-Acute psychotic Episode associated with cannabis use. Had not engaged with CMHS post discharge.” The discharge notification states that the Mother acknowledged recent heightened alcohol use, but denied that she had imbibed for the past week. It further notes that the Mother acknowledged recent cannabis use, but only once in the past two weeks. The final diagnosis is stated as “Bipolar Affective Disorder, current episode Manic without psychotic symptoms - resolving. Substance Induced Mood Disorder - resolving.” The recommended future management for the Mother was stated as “follow-up with (omitted) CMHS”.
In cross-examination, the Mother said she was compliant with her medication at the time, and the report of her “non-adherence” was because the Maternal Grandmother had told medical staff that she was not adherent. The Mother said that the Maternal Grandmother was in control of providing her with her required medication, and as far as she knew, she was taking her required medication.
The Mother agreed that at the time she was experiencing “heightened activity levels; “racing” thoughts; perceptual disturbance and disturbed sleep/apetite.” The Mother further agreed that, although at discharge, the psychiatrists at the (omitted) Psychiatric Unit had recommended that she link with community mental health services, she did not. The Mother also agreed that in 2010, she had also not engaged with community mental health services after discharge.
There is also a discharge summary dated 1 September 2014 from (omitted) Health (Exhibit SR2). The contents of that discharge summary reflect the discharge notification above, and therefore it is unnecessary to quote extracts from it.
The Maternal Grandmother and Mr Cann’s evidence is that shortly prior to the admission, the Mother had visited a friend in Melbourne and returned disorientated, with rapidly deteriorating mental health. The Maternal Grandmother says that she was contacted by her son, Mr M, who informed her that the Mother had left X with him for a period of roughly one week.
The Mother says that she was visiting a friend who was severely ill, and that Mr M had agreed to look after X for her. The Mother’s belief is that she drank an alcoholic beverage that was spiked, and that this caused her to be disorientated upon her return. The Mother denies that her mental health was rapidly deteriorating.
The Mother’s evidence is that she was diagnosed with Bipolar Disorder by Dr C after the Maternal Grandmother spent an hour with him, without her being present. The Mother maintains that Dr C did not speak to her before making his diagnosis, and that he did not perform any assessment of her, other than to inform her that she had Bipolar Disorder. The Mother’s belief is that the Maternal Grandmother’s narrative to Dr C played a big part in his decision to diagnose her with Bipolar Disorder.
There are handwritten notes of the Maternal Grandmother (Exhibit SR3), said to be written in July 2014. The Maternal Grandmother gave evidence that she wrote these notes in the waiting room before she saw Dr C.
The Mother gave evidence that she still believes the Maternal Grandmother and Mr Cann were biased in their reporting of her mental health problems, but conceded that they both may have sought mental health assessments of her because of genuine concerns.
In a referral letter to the Emergency Department at the (omitted) Hospital dated (omitted) 2015, Dr C of (omitted) Surgery stated (Exhibit F3):
Thank you for seeing [the Mother] who has an acute mental health disturbance, possibly post-partum psychosis or mania/hypomania associated with BPAD. [The Mother] has a history of two previous admissions to (omitted) with psychosis and BPAD, the last of which was in September last year. She now presents with 2 weeks of deteriorating mental state culminating in no sleep over the past 48 hours and significant thought disturbance this afternoon with disorientation to person, place and time, psychomotor retardation and self-described ‘detachment’; form [sic] her baby Y (now 7 weeks of age). She is unable to give any other relevant history. She denies thoughts of self-harm or feelings of wanting to harm her baby but her partner [Mr Cann] holds significant concerns for her well-being and believes she is incapable of caring for either herself or her children. DHS [sic] have already been involved last week due to concerns over [the Mother’s] mental health and [Mr Cann] currently has full legal custody of both the baby Y, and the Mother’s older son X.
I have discussed [the Mother] with the Crisis Assessment Team today by phone at 4pm and they have advised she proceed to A&E for further assessment. She has willingly agreed to this and [Mr Cann] will transport her by private car…
On 12 November 2015, Dr E, Consultant Psychiatrist at (omitted) Community Mental Health said:[2]
[The Mother] was referred to (omitted) on 29th July 2015 with concerns about her mental state; she was seven weeks postpartum. She was assessed by locum psychiatrist, Dr M, on 29th July. His impression was that [the Mother] was likely suffering from Postnatal Depression and was a low risk to herself and others, including her children. [The Mother] demonstrated good insight and a willingness to engage with treatment. She continued to take the sertraline (antidepressant) and olanzapine (mood stabiliser) that had recently been prescribed and agreed to regular follow-up from our service.
Dr M reviewed [the Mother] on 5th August. She was clinically improved, her mental state was “stable” and she remained a low risk to herself and others. On 12th August [Dr M] reviewed [the Mother] again and documented: “She is doing really well. No concerns about safety issues.”
On 10th September, [the Mother] was reviewed by locum psychiatrist, Dr L. Her mental state remained stable and no risk issues were identified. Dr L documented: “Despite past diagnosis of Bipolar Disorder, there are many confounding factors against being sure of the diagnosis.”
I reviewed [the Mother] on 20th of October 2015. Her mental state was stable, she was adherent with treatment and I did not consider her to be a risk to herself or her children. I, too, was not convinced that there was sufficient evidence to confirm a diagnosis of Bipolar Affective Disorder.
In the past three months, [the Mother] has been assessed by three different psychiatrists. All have confirmed that her mental state is stable and that she is not a risk herself or her children. [The Mother] is adherent with her medication, engaged with a psychologist and attending her appointments with our service. It is with this in mind that I support [the Mother] having unsupervised access to her children.
[2] The Mother’s Affidavit filed on 10 June 2016, Annexure B-6.
In accordance with Interim Orders made on 17 August 2016, the Mother attended upon Dr A for a psychiatric assessment. Dr A’s psychiatric report is dated 11 February 2016.[3] In setting out his opinion and recommendations, Dr A said:[4]
2. …The September 2010 episode related to a psychotic state that was either a first episode psychosis or substance-induced psychosis. She admitted to using cannabis prior to this episode, but in this assessment she also referred to consuming rosewood seeds that possibly could also contributed to hallucinosis. Based on the clinical notes she appears to have recovered quite promptly with antipsychotic medication. She didn’t comply with recommended follow-up with an area mental health service. It would seem noteworthy that the clinical notes include reference to [the Maternal Grandmother] reporting that her mental health had declined over many years, rather than a brief period, suggesting an enduring mental health problem was emerging.
3. [The Mother] experienced what appears to have been a similar episode of mental decline in September 2014, similarly on the background of cannabis use. The differential diagnosis at discharge from the (omitted) Hospital included Bipolar Affective Disorder or Substance induced mood disorder.
4. [The Mother] was referred by her GP, Dr C to the (omitted) Area Mental Health Service in July 2015 for psychiatric assessment following a two-week decline in mental state. The clinical notes confirm that she again experienced psychotic symptoms, but on this occasion she very promptly recovered with a day of treatment with antipsychotic medication. Differential diagnoses included sleep deprivation, ‘baby blues’, post-natal depression, adjustment disorder were included in the clinical notes. An alternative diagnosis of Post Partum Psychosis was not included, but would seem relevant.
5. [The Mother] was clinically reviewed by multiple psychiatrists from July 2015 until late 2015 and apparently concluded that she was presenting with a stable mental state and her previous diagnosis of Bipolar Affective Disorder was excluded.
6. It is very difficult in family law proceedings to provide a definitive synopsis of an individual’s psychiatric history, as it is often problematic interpreting clinical files based on psychiatric assessments conducted by multiple clinicians at different times. However, based on all of the clinical information provided, combined with [the Mother’s] self-report, and presentation in this assessment, it would seem unlikely that [the Mother] has an enduring mental illness, such as Bipolar Disorder, but nor can it yet be completely excluded. [The Mother’s] clinical presentations in 2010, 2014 and 2015 all seem to possibly relate to cannabis use as a possible triggering factor, but [the Mother] was rather vague in regards to the extent of her cannabis use, other than to confirm that it not been habitual/dependant. She may be very sensitive to the impact of cannabis. She also mentioned that she had consumed rosewood seeds in 2010 as an additional substance that may have triggered an acute change in her mental state. [The Mother] has a family history of mental illness and she might be genetically predisposed to developing an enduring mental illness. She has also been raised in a traumatic family inclusive of child sexual abuse. There is growing evidence that sexual abuse related trauma can predispose to psychotic conditions. [The Mother] would be well advised to abstain from ever using cannabis again. She advised that she ceased using cannabis in September 2016.
7. [The Mother] strongly have [sic] the impression that [the Maternal Grandmother] and [Mr Cann] were unsupportive and biased when reporting on her mental health problems. The clinical notes highlight that this element to her history is germane, but it would seem quite likely that both [the Maternal Grandmother] and [Mr Cann] sought assessment and treatment due to genuine concerns, rather that [sic] for malevolent reasons. The notes from July 2015 include reference to [Mr Cann] being a very supportive partner.
8. [The Mother] presented with a stable mental state in this assessment, consistent with documented assessments in 2015 through to her discharge in May 2016. I could not identify any underlying residual signs of mental disturbance, or evidence of an enduring mental condition. Given [the Mother] has a formal psychiatric history as documented, it would seem reasonable and prudent that she relatively regularly (perhaps every few months) attend her GP for a mental health assessment to ensure early signs of emerging mental problems are detected. It is likely that [the Mother] will considerably lessen her risk of developing further mental problems if she abstains from illicit substances, including cannabis. Based on this assessment there does not appear to be any current evidence of mental problems that could be considered to present as risk factors for parenting of X and Y. In the event that [the Mother’s] mental health status changes, including early signs of emerging problems similar to the past (signs of unusual behaviour, sleep disturbance, disordered thinking), she should be prompt he reviewed by her GP, or if concerns are particular significant, then she should be properly assessed in a hospital with a view to an assessment by psychiatrist. [The Mother’s] formal ‘diagnosis’ will likely become evident as time passes.
[3] Affidavit of Dr A filed on 13 February 2017, Annexure A-1.
[4] Ibid Annexure A-1, 6 at [2]-[8].
Section 60CC(3)(l) of the Act – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
[39] The Mother’s Affidavit filed on 13 July 2017, Annexure B-12.
[40] Ibid.
I am satisfied that the orders proposed by the Mother, Mr Stanley and the ICL are orders which are least likely to lead to the further institution of proceedings in relation to X.
I am satisfied that the Mother and Mr Stanley are able to put in place living arrangements which are focused on X’s best interests. As I have stated, it is unlikely the parents would have sought parenting orders in relation to X, but for the application by the Maternal Grandmother for parenting orders.
I am concerned that the Maternal Grandmother’s proposed orders in relation to X will lead to further litigation in the circumstances where they are not supported by X’s parents and, where that lack of support is, in my view, well-founded.
Section 60CC(3)(m) of the Act - any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances that the Court thinks is relevant.
Sections 61DA and 65DAA of the Act
Section 61DA(1) of the Act provides that 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. I am satisfied that, given the evidence that the parents have a highly developed cooperative parenting relationship, the presumption of equal shared parental responsibility should apply.
Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1) of the Act. Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2) of the Act. The meaning of substantial and significant time is set out in s.65DAA(3) of the Act.
The orders proposed by the Mother, Mr Stanley and the ICL provide for the X to live with the Mother and spend time with Mr Stanley as agreed between them from time to time. Nevertheless, I am required to follow the pathway mandated by s.65DAA of the Act.
Although there was no evidence in relation to a parenting arrangement involving X spending equal time with both parents, I am satisfied given X age, an equal time arrangement would not be in X’s best interests.
Again, in the absence of evidence to the contrary, I am satisfied that spending substantial and significant time with Mr Stanley would be in X’s best interests. However, there are clearly practical difficulties associated with this, including the distance between the parents’ residences and Mr Stanley’s work. I find, therefore, that it is not presently reasonably practicable for X to spend substantial and significant time with Mr Stanley. It may be that as X progresses through his schooling, the parents decide that it would be in X’s best interests to spend time with Mr Stanley during the school week.
Conclusion - X
The ICL’s written submissions with respect to the opposition expressed by both X’s parents regarding any orders providing for the Maternal Grandmother to spend time with X, includes the following extract at [41]:
41. The Mother and Mr Stanley have a cooperative parenting relationship in relation to X. They are united in their opposition to the maternal grandmother having a relationship with X. As X’s parents, considerable weight should attach to their united view and decision as to X’ best interest. In Church & T Overton & Anor [2008] FamCA 965 his Honour Justice Benjamin said in this regard:
56. The United States of America and the United Kingdom each have rights legislation. Australia has no comprehensive rights legislation. That is not to say that various rights are not enshrined in diverse statutes. Courts need to be aware of these differences when referring to case law from other jurisdictions. It is likely that the jurisprudence between States with rights legislation and those without will diverge.
57. Section 60B(2) of the Act provides the principles underlying the objects in parenting proceedings which are expressed in ss60B(2)(a) to (e). These are expressed in the negative in that they apply “except when it is contrary to the child’s best interests” (emphasis added). This means that parents ought to be left to parent their children according to those objects unless it is established that it is not otherwise in the best interests of a child.
58. The law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child.
59. An example of the court’s approach to overriding a joint parental decision about a child is Re Michael (1994) FLC 92-471. Michael was 12 years old and suffered from a serious cardiac condition. His parents appealed Treyvaud J’s decision enabling the Public Advocate to seek a declaration that he be authorised to consent to a medical procedure for Michael. Whilst a Full Court of Nicholson CJ, Fogarty and Joske JJ were focused on the standing of the Public Advocate, during the course of the judgment their Honours made it clear that it was for the Public Advocate to establish by way of medical evidence that the parent’s decision was unjustified (at page 80, 893).
60. If a court is satisfied that an approach to the upbringing of a child by a parent or parents in whatever way is contrary to that child’s best interests, then the court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.
61. That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not be the subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.
(Emphasis in original)
I have earlier found that the concerns expressed by both the Mother and Mr Stanley about X spending time with the Maternal Grandmother to be soundly based. They are, in my opinion, child-focused, and are not capricious.
In my view, Mr Stanley’s evidence that he is concerned about the exposure of X to the conflict between the Mother and the Maternal Grandmother, and the disruption of his routine during the time he spends with him and his extended paternal family, and the potential adverse impact on X speech issues, is considered and soundly based.
I am not satisfied that the orders proposed by the Maternal Grandmother are in the best interests of X. The Mother is the primary caregiver of X. I have made findings regarding the Maternal Grandmother’s negative views about the Mother and, in particular her parental capacity. I have found that these views are likely to persist. I am satisfied that the Mother’s distress about the Maternal Grandmother’s negative views is well-founded. I am satisfied that an order providing that X spend time with the Maternal Grandmother will cause further emotional distress to the Mother and likely impact on her emotional and psychological well-being. Further it may well adversely impact on her parental capacity.
I have rejected the Maternal Grandmother’s argument that she can provide a protective mechanism in the event of deterioration in the Mother’s mental health. To the contrary, it is of significant concern to the Court that the Mother’s psychological well-being may well be compromised by any order providing for X to spend time with the Maternal Grandmother. Of significant concern to the Court is that X is a vulnerable child, about to enter his schooling years and the most likely effect of the Maternal Grandmother’s proposed orders are that he will be exposed to tension in both the Mother’s and Mr Stanley’s homes.
I am not satisfied that an order providing for the maternal grandmother to communicate by telephone or electronic media is in the best interests of X for the reasons set out above at [457]-[458]. Furthermore, for the same reasons, the parents should retain the decision as to when and how the Maternal Grandmother be permitted to send cards or gifts to X.
Consequently, I will make the Orders sought by the Mother, Mr Stanley and the ICL in relation to X, save for the restraint that they seek in relation to the Maternal Grandmother spending time and communicating with X. I appreciate that X’s parents may well feel anxious that the Maternal Grandmother will take steps to spend time or communicate with X. However, there is no evidence before the Court that the Maternal Grandmother would contravene an order providing for the Maternal Grandmother to spend time and communicate with X only with the written consent of his parents.
I certify that the preceding four hundred and sixty (460) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 21 December 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
0