Chadwick and Chadwick

[2013] FamCA 1138

FAMILY COURT OF AUSTRALIA

CHADWICK & CHADWICK [2013] FamCA 1138

FAMILY LAW – CHILDREN – where the parties reached consent on the third day of trial – where the father suffers from significant mental health issues – where the father has made significant threats against the mother and children – where the consent orders provide for supervised time – whether consent orders are in the best interests of the children – where consent orders were made on an interim basis.

Family Law Act 1975 (Cth) s61DA, 65DAB.

APPLICANT: Ms Chadwick

RESPONDENT: Mr Chadwick

INDEPENDENT CHILDREN’S LAWYER: Colville Johnson Lawyers

FILE NUMBER: BRC 7858 of 2009

DATE DELIVERED: 12 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8, 9, 10, 11 and 12 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mc Dougall

SOLICITOR FOR THE APPLICANT: Littles Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dick

SOLICITOR FOR THE RESPONDENT: Sciaccas Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Cherry, Colville Johnson Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. All previous Orders be discharged.

Living Arrangements and Parental Responsibility

1. That the children B born … 2006 and C born … 2007 live with the Mother.

2. That the Mother have sole parental responsibility in relation to all long term issues concerning the children, including but not limited to in relation to their health, education and religion.

3. That the Mother will advise the Father by email within seven (7) days of any decision she makes regarding any long term issue affecting the children in the exercise of her sole parental responsibility.

Exchange of Information

1. That the Mother and Father will keep each other advised of their current email address at all times and notify each other of any change thereto forthwith.

2. That the Mother will inform the Father as soon as reasonably practicable by email of any serious medical condition, health issue, injury or illness suffered by the children.

3. That this Order authorises the children’s schools to release to the Father copies of the children’s report cards and copies of newsletters and school photograph order forms at his request and expense. 

4. This Order does not authorise the school to release any other personal information about the Mother or children to the Father, nor is it authority for the Father to attend at the children’s school for any purpose unless otherwise agreed upon in writing by the Mother.

5. That should the Father be hospitalised for any mental health related illness he or his agent is to advise the Mother within three (3) days of his admission.

6. That following any period of hospitalisation for a mental health related illness, the Father will provide the Mother with a copy of the Discharge Summary or other Report from the hospital or his treating psychiatrist outlining the reason for the admission, the treatment provided and the recommended post  release treatment.

7. That the Father will advise the Mother within seven (7) days in the event he separates from Ms Menyweather.

Overseas Holidays

1. That the Mother be permitted to travel overseas with the children on holidays, on the giving of two (2) weeks notice to the Father, for periods of up to four (4) weeks at a time, during which time the Father’s time with the children otherwise provided for in these Orders will be suspended.

2. That the Father will sign any Application for a passport for the children within seven (7) days of a request to do so from the Mother, and for this purpose, a blank Application from the Mother will be sufficient for this request.

Child Psychologist

1. That the Mother forthwith arrange for the children to speak with their psychologist about being reintroduced to their Father and spending time with him again in the future in a contained and secure environment and the children’s appointment with the child psychologist is to occur within twenty one (21) days of this Order.

The Father’s psychiatric treatment

1. That within seven (7) days of the making of this Order the Father will contact a treating psychiatrist, other than Dr D, as recommended by Dr D in conjunction with the Independent Children’s Lawyer and shall take the first available appointment with that practitioner and thereafter, shall attend in person upon such treating psychiatrist no less than once per month for ongoing monitoring of his mood and mental health

2. That leave be granted for the Independent Children’s Lawyer to provide the Father’s treating psychiatrist copies of all psychiatric reports tendered during these proceedings and Ms E’s Family Reports.

3. That the Father take all medication as prescribed by his treating psychiatrist in the manner prescribed by his treating psychiatrist and the Father notify the Mother by email each time his medication is changed in any way, and provide her with a copy of the prescriptions evidencing the change.

4. That the Mother be at liberty to request a pathology test from the Father, no more than once every three (3) months, to confirm that the Father is taking only medication as prescribed to him or such therapeutic substance as advised to his psychiatrist pursuant to Order 20 and deemed appropriate by his psychiatrist and the Father shall undertake such test by requesting a general blood test and specific tests to determine if possible the levels of prescribed medication within his system and the presence of any anabolic steroid or cantabolic substance.

5. That the Father will provide the Mother with documentary evidence by email of his attendances upon his treating psychiatrist, pursuant to these Orders, and copies of any prescriptions provided to the Father for his mental health related illness.

Consumption of substances

1. The Father shall advise his treating psychiatrist of all prescription medications and all therapeutic substances consumed by him and seek specific advice from his psychiatrist as to the appropriateness of Father continuing to consume any such medication or substance.

Family Therapy

1. That within seven (7) days the Mother will notify the Father by email whether she wishes to attend family therapy to discuss issues including but not limited to the following:

   (a) the history of the matter including traumas identified in Ms E’s Family Reports;

   (b) the parties’ fears and concerns in relation to rebuilding the children’s relationships with the Father;

   (c) the history of Mr Chadwick’s mental health problems, and how these have impacted his relationships with his children; and

   (d) strategies to support and strengthen a post separation parenting relationship.

2. That should the Mother elect to attend family therapy as outlined above, the Mother will further notify the Father by email which of the following therapists she would like to attend upon from the following panel:-

   (a)    Ms F;

   (b)    Ms G; or

   (c)    Ms H.

3. That upon receipt of notice from the Mother as to her preferred therapist, the Mother and the Father will each contact that therapist separately within a further seven (7) days to arrange individual sessions to discuss the issues outlined above.

4. That each party notify the Independent Children’s Lawyer within 48 hours of them arranging individual sessions with the therapist, as provided for in Clause 23 and provide to the Independent Children’s Lawyer the therapist’s contact details and the date of their appointment.

5. That leave be granted for the Independent Children’s Lawyer to provide to the family therapist copies of all psychiatric reports tendered during these proceedings and Ms E’s Family Reports.

6. That following the individual sessions as outlined above, the parties, their partners (if applicable) and extended families (if applicable) attend upon the therapist for a family session to discuss the commencement of supervised time between the Father and the children and the joint therapy session only take place on the recommendation of the therapist.

7. That the Father will be responsible for the costs of the family therapy.

Spending Time Arrangements

1. That the parties forthwith contact the I Contact Centre and undertake all intake procedures and that the Father will pay all fees associated with intake and contact at the Centre.

2. That should the Mother elect not to attend family therapy as outlined above, the children will commence spending time with the Father at the Centre as soon as can be accommodated by the Centre, but only after they have spoken with their psychologist pursuant to these Orders.

3. That in the event that the Father fails to comply in any respect with Orders 15 to 19 any supervised time as between the Father and the children be suspended pending further agreement between the parties in writing and/or Court Order.

4. That in the event that the Father is hospitalised in regards to his mental health any supervised time between the Father and the children be suspended pending further written agreement between the parties and/or Court Order.

5. That these orders act as authority for the family therapist and Contact Centre supervisor to communicate directly with each other.

IT IS ORDERED:

1. That following completion of two (2) months of family therapy as outlined above, that the children commence spending time with the Father for two (2) hours each alternate weekend, such time to occur at the I Contact Centre, and that the parties will adhere to the policies of the Contact Centre without breach.

2. That commencing July 2014 the Father communicate with the children by telephone each alternate Wednesday night commencing on the Wednesday after the contact visit between 5.00 pm and 5.30 pm with the Mother to provide the Father with a number upon which to call, and the Mother to facilitate the call.

3. That in the event that the Father is hospitalised in regards to his mental health, all telephone communication between the Father and the children shall be suspended pending his discharge from hospital and the provision by him to the mother of a copy of his discharge summary and a report from his treating psychiatrist confirming that his mental health is sufficiently stable so as to enable him to engage in telephone communication with the children.

IT IS FURTHER ORDERED:

1. That pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS DIRECTED

1. That any further interim applications or contravention applications be listed before Hogan J. 

NOTATION:

A:It is noted that these proceedings are being heard simultaneously with proceedings involving the children’s half sibling J.  It is the intention of the Orders regarding family therapy that the same family therapist be used for both matters and the Mothers in each case will need to make a joint decision in this regard should they both elect to partake in the family therapy.

B:It is requested that the supervisor of the relevant Contact Centre ensures that a senior experienced and properly qualified person undertake the supervision of the Father’s visits.

C:It is intended that the matter will be adjourned to a date to be advised no sooner than 15 months from the date of these Orders.

D:The Court notes this Order is made with the knowledge that there is an existing Domestic Violence Order (made 24 June 2013) between the Father and the Mother which names the children.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7858 of 2009

Ms Chadwick

Applicant

And

Mr Chadwick

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The parents of B, born in 2005, and C, born in 2007, separated on 14 July 2008.  From that period until March 2011 the children spent time with their father on a supervised basis.  Some supervision was undertaken by their mother and some by their maternal grandmother.  The children have not seen or spent time with their father since March 2011.  I do not intend to canvass in detail in these Reasons the reasons for this, other than to note that, having already been hospitalised in 2008 in relation to mental health issues, the children’s father was hospitalised in March 2011 and again in July 2012.  He has been diagnosed as suffering from bipolar effective disorder which requires ongoing medical intervention and treatment.

2. After three days of evidence before me, the parties were able, over a number of hours yesterday, to negotiate a series of comprehensive orders that deal with the time the children are to spend with their father on an interim basis.  They were able to agree on all matters, save for two which, in one sense, became perhaps three during the course of submissions.

3. It is, I think, to the significant credit of both of the parents in this matter that they have been able to reach agreement about so many of the matters.  Such actions on their part leave me in no doubt whatsoever that both of them wish the very best for their children in the future. 

4. Whilst it may appear at first blush that the matters that requiring my determination are minor (given those matters about which agreement has been reached) a proper appreciation of the evidence given over the last three days persuades me that this is not the case. 

5. As these proceedings are proceedings for parenting orders in relation to children, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Act, I may make such parenting orders as I deem proper.  In doing this, I must have regard to the objects of Part VII of the Act and the principles which underpin those objects.

6. Given that this is an interim order and that the parties are agreed upon an order that the mother have sole parental responsibility for the children, the question of the parenting orders to be made is, at large - subject always to the children’s best interests being the primary consideration. 

7. The first matter requiring my determination is whether time the parties are agreed the children should spend with their father on a supervised basis at the I Contact Centre should, when it commences, do so immediately on a fortnightly basis or whether it should occur on a monthly basis for the first six months and, thereafter, on a fortnightly basis. 

8. Counsel for the Independent Children's Lawyer submitted that frequency of time between the children and their father was something which was beneficial for them, given their ages.  Counsel for the father joined in this submission, urging that as the threshold for supervised time at a Contact Centre had been crossed, it was more likely to be beneficial for the children that they move into a regular and frequent routine in this time with their father as soon as possible, rather than be faced with visits on a monthly basis.

9. I conclude from the submissions of Counsel for both the Independent Children's Lawyer and the father that the thrust of their submissions is that alternate weekend supervised time would enable the children to recommence and continue to develop their relationship with their father without the necessity, occasioned by interruption, of continuing to re-embark upon the recommencement process - as, it is inferred, would be the case if the time proceeded on a monthly basis.

10. Counsel also submitted that, given the curiosity expressed by at least B about her father to the Family Report writer, a frequency of alternate weekends is one which is more likely to be in the children’s best interests.  Counsel also relied upon and accorded appropriate acknowledgment to the support that the mother has given to the children and the fact that she has, throughout this very difficult period, acted in a way so as not to undermine their relationship with their father.  As Counsel said, it does the mother great credit and is a demonstration of not only her focus, but also her determination, to ensure that the children are shielded to the greatest degree possible from any negative impact arising from the separation of their parents, and the fact that their father suffers from a significant mental illness.

11. Counsel for the mother submitted it was premature for the children to commence their time with their father on a fortnightly basis - it would be more beneficial for them if such time were, for a six month period, to proceed on the basis of one visit per month.  It was submitted that it was too soon to jump to a fortnightly rather than a monthly timeframe. 

12. The Family Report Writer noted - at paragraph 125 of the first report - that when she asked B about her father during the first observations on 14 November 2011, B said she had a father who did not live with them any more because he was sick.  She also told the Report Writer that she would like to see her father and that she was seeing a special person, a psychologist, to help her feel happy.  B is recorded as having told the Report Writer that she had spoken to her mother about her father and that her mother was going to get a photograph of him - this discussion had occurred only recently.

13. At paragraph 152 of the first Family Report, the Report Writer expressed the opinion that the children were not emotionally or psychologically ready at that time to have contact with their father.  She said that, with the passage of time and therapeutic intervention, they may be able - in the future - to cope with a gradual reestablishment of contact with him. 

14. The Family Report Writer noted during the course of the second Family Report, prepared after consultations with the mother and children on 23 May 2013, that B told her that her father was big and tall and handsome, that she did not know much about him, that she loved him and knows that he loves her as she remembers he used to tell her that when she was little.  At paragraph 107 of that report, the Family Report Writer records B telling her that she does not see her father, she is not really sure why, but it makes her sad that she does not see him.  During the interview, C told the Report Writer that his father did not live with them and he had not seen him since he was sick. 

15. At paragraph 159 of the second Family Report, the Family Report Writer records her view that the children’s reintroduction to the father should commence and occur in a supervised and contained environment until they are comfortable.  Whilst she also recorded the view that the reintroduction should be dependent on guidance from the children’s therapist in relation to when they would be ready to resume their relationship with him, I note that the mother, the person to whom they have a secure and primary attachment, has already determined that they are ready - with the assistance and support of the therapist and, no doubt, herself - to recommence a relationship with their father. The process of reintroduction to him is to be at a Contact Centre in the timeframe set out in the terms of the proposed order that is agreed between the parties.

16. Having considered the material before me, including the matters referred to here, I consider it is in the children’s best interests that, when their time with their father commences at the Contact Centre, it do so on the basis of a frequency of each alternate weekend.  I consider that such frequency is more likely than not to provide the children with the maximum opportunity to re-establish, develop and maintain a relationship with their father.  I also take into account that, by this stage, they will, with the agreement of their parents, have attended upon their own therapist for assistance in processing and dealing with the idea of a reintroduction to their father.

1. I am also persuaded that it is much more likely than not that their mother will do all that she can to support them in this and continue to shield them from any concerns she might have about this process. 

2. The second issue in respect of which the parties required a determination was whether, at this time, I should make an order that there be telephone communication between the children and their father on a weekly basis commencing in July 2014.  Counsel for the mother opposed the making of such an order at this time.  Counsel submitted that I would accept the evidence that the children’s mother was justifiably petrified and continued to experience an anxiety that was justified in the circumstances of this case. 

3. It was submitted, against the background of the material before me, that an order which provided for weekly telephone communication between the children and their father would lead their mother to suffer severe anxiety leading up to such calls, and would also require her to interact with the children’s father to facilitate such telephone communication.

4. Counsel also submitted that, if I were persuaded to make an order in relation to telephone communication at this time, it should be one that provided for the commencement of telephone communication 12 months after the first occasion on which the children spent supervised time with their father.  Counsel submitted that, if as has been the case, I am against the mother’s primary submission that supervised time commence on the basis of once a month visits for six months and I make orders for alternate weekend time, then I should make no provision, at this time, for telephone communication between the children and their father. 

5. Counsel for the Independent Children's Lawyer submitted that I should be persuaded to make an order that the children have telephone communication with their father on a weekly basis, commencing in July 2014 because, given the interim nature of the orders the parties have agreed upon and the potential return of the matter before me no earlier than about 15 months from the date of these orders I would be assisted by having evidence as to how telephone communication and face-to-face time between the father and the children at the Contact Centre was progressing.

6. Counsel submitted that the commencement of telephone communication, together with fortnightly supervised time, would provide a factual basis for a future determination of those orders which are then in the children’s best interests.  Counsel for the father submitted I should be persuaded to make an order for telephone communication between the children and their father because, given it would not commence until July 2014, they would, by then, have had face-to-face contact with him and, as such, any telephone communication would be supplementary and would provide the children with an additional opportunity to continue to develop and strengthen their relationship with their father.

7. It is trite to say that making an order in relation to telephone communication between the children and their father, to commence either in July 2014 or in about October 2014 requires a significant of what is colloquially described as crystal ball gazing. 

8. Whilst it may not, in another case, matter much at all, I consider that in the circumstances of this case, the order which is in the children’s best interests is one which would see telephone communication commence in July 2014, but occur at a frequency of one telephone communication each fortnight.

9. In that way, the children will be able to maintain their ongoing relationship with their father - who they will at that time be seeing every second weekend at the Contact Centre - but their mother (their primary care provider, the person to whom they have their primary attachment and the person from whom they obtain their primary support) who, I accept, may well feel impinged upon in her own household, will have some continued respite from communication with the father. 

10. For this reason, the order I intend to make will see the children’s telephone communication with their father occur on the Wednesday in the week after their supervised visit, and each alternate Wednesday thereafter.

11. During the course of submissions, Counsel for the mother submitted that telephone communication between the children and their father should be suspended if the father failed to comply in any respect with orders numbered 15 to 19 and also in the event that he is hospitalised in relation to his mental health.  It was submitted that telephone calls and telephone communication should be contingent on there being no suspension of physical time consequent upon the operation of clauses 32 and 33 of the proposed agreed orders.

12. Such contention was opposed by both the Independent Children’s Lawyer and the father.  It was submitted by Counsel for the Independent Children’s Lawyer that the manner in which paragraph 32 of the proposed order was drafted was deliberately broad so as to cover any failure – consequently, there may be a non-compliance by the father which would lead to a suspension of his face to face time with the children in circumstances where such non-compliance would not pose to the children any risk associated with a continuation of telephone communication.

13. It was, I consider, accepted by Counsel for the Independent Children’s Lawyer that it was in the children’s best interest that clause 33 of the proposed order be drafted so as to bring an end to telephone communication between the children and their father in the event that he is hospitalised and to ensure that such communication is suspended until the mother is provided with appropriate information following discharge from hospital.  Counsel for the mother accepted the proposition that, if the father was hospitalised in relation to his mental health, telephone communication should be suspended.

14. Counsel submitted that telephone communication in such a circumstance should only recommence on the basis of psychiatric opinion, noting that the evidence suggested there was an up to six week recovery period if the father received further ECT treatment during any such hospitalisation.  Counsel for the mother submitted that I should not make an order recommencing time, but leave it to the consulting psychiatrist to provide information to the parties in relation to this.  Counsel for the father re-emphasised the desire of the father to recommence time.

15. I understood Counsel to accept the sense in a proposal that the father’s communication with the children be suspended if he were hospitalised, but Counsel further submitted it would be undesirable for the parties to be brought back to Court simply in relation to any disagreements about whether telephone communication should or should not re-commence following any admission to and subsequent discharge from hospital. 

16. I am not persuaded that it is in the children’s best interest that their telephone communication with the father cease immediately upon any non-compliance with the terms of clauses 15 to 19 of the proposed order.

17. However, as would be apparent from my exchanges with Counsel, I do consider it is appropriate if the father is hospitalised in relation to his mental health.  In order to deal with that possibility, as best I can at this point, I propose to order that, in the event the father is hospitalised, in relation to his mental health, telephone communication between the father and the children will be suspended pending his discharge from hospital and the provision, by him, to the mother of a copy of the discharge summary, and a report from his treating psychiatrist confirming that his mental health is sufficiently stable so as to enable him to engage in communication with the children.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 July 2013.

Associate:     

Date:    12 July 2013