Catrine & Isak
[2024] FedCFamC1F 132
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Catrine & Isak [2024] FedCFamC1F 132
File number: BRC 2585 of 2019 Judgment of: CAREW J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – CHILDREN – Where the parties presented a signed minute of order on day two of what was originally to be a ten day trial – Where the independent children’s lawyer did not consent to the proposed order, but did not actively oppose it – Where the Court cannot be satisfied that the proposed order is in the child’s best interests – Where the matter is adjourned for hearing of further oral submissions as to the appropriateness of the proposed order and to enable the parties to file further affidavits addressing issues of risk Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 22 Date of hearing: 13 March 2024 Place: Brisbane Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: Lander Solicitors Qld Counsel for the Respondent: Mr Hartwell Solicitor for the Respondent: Focus Family Law Counsel for the Independent Children’s Lawyer: Ms Murphy Solicitor for the Independent Children’s Lawyer: Pippa Colman & Associates ORDER
BRC 2585 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CATRINE
Applicant
AND: MS ISAK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The proceedings are adjourned for the hearing of further oral submissions on 10 May 2024 at 10.00am.
2.The costs of the independent children’s lawyer are reserved for determination on the adjourned date.
NOTATION:
A.The matter has been adjourned to enable the parties to file evidence sufficient to satisfy the Court that the order the parties have agreed to is in the best interests of the child, Z born 2013.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
This is a parenting dispute that was originally set down for ten days such were the complexity and number of issues requiring forensic determination. As some issues fell away, the trial was shortened to five days and was due to commence yesterday. I note that all parties are publicly funded in the proceedings.
In the afternoon yesterday, the parties presented a signed minute of order that would see their ten year old son, X, move from living primarily with his father, where he has lived since May 2019, to living nine days a fortnight with his mother and five days a fortnight with his father.
The independent children’s lawyer (“ICL”) does not consent to the proposed order given her inability to be satisfied that key risk factors have been satisfactorily addressed, but does not actively oppose the order if the Court is minded to make it.
The Court’s power to make a parenting order is discretionary with the paramount principle being whether the best interests of the child are met by the proposed order. As all matters that come before this Court will generally involve circumstances that are less than optimal, the best interests test is one that reflects the circumstances of the case.
In this case, the mother alleges significant and sustained family violence involving physical, emotional, and controlling behaviour by the father against her and to some extent the children. The father denies the allegations contending that while the children were exposed to conflict it arose from a combination of the mother’s mental illness and abuse of alcohol.
The risk factor issues that arise in this case can be summarised as follows:
(1)Is the father’s current relationship with Ms B marred by family violence given the serious nature of the allegations made against him by the mother in these proceedings including that he once committed a serious act of violence?
(2)What will be the living arrangements for Z once Ms B and her three daughters commence to live at the father’s home as planned in early 2024?
(3)Has the father continued to use marijuana or other illicit substances?
(4)How is the mother managing her long history of mental illness including a diagnosis of a mental health disorder, anxiety, depression and possibly post-traumatic stress disorder (“PTSD”)?
(5)How is the mother managing the risks associated with her long history of alcohol abuse?
Surprisingly, there is no evidence from Ms B and no explanation for her absence as a witness in the father’s case. While Ms B was interviewed for the most recent family report and denied any family violence by the father, I would have expected to see some sworn evidence from her. I note that Ms B told the family report writer that the father of her own three children was emotionally, psychologically, and financially abusive to her. It is certainly not uncommon for women who have been subjected to family violence to re-partner with a person who also commits family violence. In this context, I note that the mother married Mr C in 2020 and they separated at the end of 2023 and there is a protection order in place with Mr C as the respondent and the mother and another daughter, D, aged 13, as the protected persons.
As far as I am aware, the father lives in a three-bedroom home with one bathroom and Z has already found it difficult sharing this home with the father’s partner and her three female children when they have visited. There have been boundary issues involving nudity and privacy that have caused Z considerable upset and discomfort. The father provides no evidence of how the proposed new living arrangements will impact Z and how he proposes to manage those impacts.
The father has an admitted history of marijuana use but contends he “is not using illegal drugs”. Unfortunately, the father has failed to comply with the last three drug test requests made of him by the ICL. In March 2023, he said he could not afford to pay for the test. However, the father is in full time employment with an annual income of $111,592. There is no evidence before me about the cost of the test, but I find it difficult to accept that the father has been without sufficient funds to undergo a drug test for 12 months.
Dr E psychiatrically assessed the mother in October 2021, and he noted a history of hospital or clinic admissions dating back to 2009 with a previous diagnosis of a mental health disorder. Dr E opined that the mother “is prone to abuse alcohol in terms of life stress, which aggravates an underlying tendency to mood instability, which is the result of a [mental health disorder] tendence, which is linked to her basic nature and personality, shaped by her intellect”. In his view, “alcohol acts as a disinhibiting agent, and exacerbates her innate tendency to anger, dramatic behaviour, and emotional dysregulation”. At the time of assessment by Dr E, the mother was taking prescribed medication, which Dr E said “is indicated in the management of mood disorders and psychotic disorders”. The mother told Dr E she had regular psychological counselling and consultations with a psychiatrist monthly. In his view, the mother tended to minimise her alcohol intake. He described her pattern of alcohol use as a “binge pattern of use”. The mother also reported to Dr E that she took daily medication for a diagnosed medical condition which he opined “needs long term management lest it cause stressors which could exacerbate psychiatric issues”. The mother further reported to Dr E that she also takes daily medication for another diagnosed medical condition. Dr E also opined that this condition “needs long term management lest it cause stressors which could exacerbate psychiatric issues”.
At the time of Dr E’s assessment, the mother’s mental state examination was “not marked by anxious or depressed mood … [and there was] no evidence of psychosis or intoxication at this time”. Dr E opined that the mother required at least monthly review by a mental health expert. He opined that the prescription of psychotropic medication “is essential for mood stabilisation” and that the mother “needs a plan that monitors her relationship with alcohol”. He opined that a “safety management plan is essential”. Dr E’s prognosis was guarded and “dependent on [the mother’s] long-term access to therapy, [and] response to therapy”.
The mother adds to her mental illness history in her trial affidavit by stating that during a voluntary admission to the mental health service at a hospital in mid-2019, where she was a patient until discharged a few weeks later, her treating psychiatrist, Dr F, diagnosed her as suffering from post-traumatic stress disorder.
The mother contends that she continues to remain under the care of Dr F as an outpatient and to attend therapy on a weekly basis through the hospital day program for six hours each week. The mother further contends that she has undertaken various programs for anxiety management, depression, and dialectical behavioural therapy. The mother also contends that she continues to take medication (undisclosed) as prescribed.
The mother indicated when this matter was set down for trial that she intended to rely upon Dr F as a witness in her case. There is no affidavit or report from Dr F or anyone else to corroborate the mother’s evidence, or, importantly, to explain her current diagnoses, treatment, compliance, and prognosis.
Exhibit two is a document signed by Dr F in late 2023 indicating the mother’s admission to the hospital on that date for an “acute psychiatric illness, requiring hospital admission as an inpatient”.
In relation to the mother’s history of alcohol abuse, the mother’s carbohydrate deficient transferrin (“CDT”) tests undertaken in March, May, and September 2021, September 2022, March 2023, and 1 February 2024 have produced results which did not indicate “recent or ongoing excessive alcohol use”. The tests were undertaken at the request of the ICL. I note that the most recent test was requested by the ICL on 1 February 2024 but not undertaken until 12 February 2024. The test was supposed to be undertaken within 24 hours.
There is no evidence of a safety plan as recommended by Dr E.
I am concerned about the report of the mother being drunk recently. During the family report interviews on 16 January and 14 February 2024, the parties’ daughter, X, aged 17, told Ms G that this occurred while on a recent holiday and she described her mother being “overwhelmed” regarding Mr C and that the mother consumed a bottle of wine. The mother does not address this in her trial affidavit filed on 1 March 2024 but when asked about it by Ms G, the mother said she had consumed three glasses of wine but had “strategies in place to ensure her alcohol use did not become problematic”. Whether this is an example of the mother minimising her alcohol intake I do not know. What strategies the mother might have in place are not disclosed. I am also troubled by Z’s comment to Ms G that his mother’s “alcohol use was not as bad as it used to be and that [X] and [Mr W] were always there to help”. X does not live with the mother and Mr W is the 21 year old son of the mother from a prior relationship.
As I cannot be satisfied that the order proposed by the parties is in Z’s best interests, it seems to me that I have several options:
(a)I can dismiss the application and response and discharge any previous orders which would leave the parties with no orders in place but an ability to record their agreement in a parenting plan, which they have done previously;
(b)I can adjourn the proceedings to enable the parties further time to address the gaps in the evidence; or
(c)I can start the trial.
Having heard further submissions from the parties, the matter will be adjourned to enable the parties to file further affidavits addressing the issues of risk. On the adjourned date, the parties will have the opportunity to make further oral submissions on the appropriateness of the proposed parenting order.
I note that the father indicated his intention not to press his application pursuant to the Child Support (Assessment) Act 1989 (Cth) as contained in paragraphs 19 and 20 of his further amended Initiating Application filed 8 February 2024.
I further note that the parties’ lawyers are on notice that I will hear submissions as to why they should be permitted to render an invoice for the last two days in circumstances where the obvious lacuna in the evidence resulted in an adjournment.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 14 March 2024
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