Chadwick and Lacy

[2013] FamCA 1139

FAMILY COURT OF AUSTRALIA

CHADWICK & LACY [2013] FamCA 1139

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: Mr Chadwick

RESPONDENT: Ms Lacy

INDEPENDENT CHILDREN’S LAWYER: Colville Johnson Lawyers

FILE NUMBER: BRC 7839 of 2011

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 Dick

SOLICITOR FOR THE APPLICANT: Sciaccas Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Mossop

SOLICITOR FOR THE RESPONDENT: D J Gilmore & Associates

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

SOLCITOR FOR INDEPENDENT CHILDREN’S LAWYER Colville Johnson Lawyers

Orders

IT IS ORDERED BY CONSENT:

1. The child J Chadwick born … 2009 shall be known as J Lacy-Chadwick and that the parties shall do all things necessary to ensure that he is known by this name.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. All previous Orders be discharged.

Living Arrangements and Parental Responsibility

1. That the child J Chadwick (also known as J Lacy-Chadwick), born …2009, live with the Mother.

2. That the Mother have sole parental responsibility in relation to all long term issues concerning the child, including but not limited to in relation to his 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 child 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 child.

3. That this Order authorise the child’s schools or day care centres to release to the Father copies of the child’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 child to the Father, nor is it authority for the Father to attend at the child’s school or day care 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.

Overseas Holidays

1. That the Mother be permitted to travel with the child for overseas 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 child otherwise provided for in these Orders will be suspended.

2. That the Father will sign any Application for a passport for the child 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.

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 will take all medication as prescribed by his treating psychiatrist in the manner prescribed by his treating psychiatrist and the Father will 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 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.

2. 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.

3. 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 21.

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

5. 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 child and the joint therapy session only take place on the recommendation of the therapist.

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

Spending Time Arrangements

1. That the parties forthwith contact the K Contact Centre or the first available Contact Centre between Brisbane and the Gold Coast 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, that the child will commence spending time with the Father at the Centre as soon as can be accommodated by the Centre.

3. That commencing six (6) months after the Father commences spending time with J pursuant to these Orders the Father communicate with the child by telephone each Tuesday night between 5.00pm and 5.30pm with the Mother to provide the Father with a number upon which to call, and the Mother to facilitate the call.

4. 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 child be suspended pending further agreement between the parties in writing and/or by Court Order.

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

6. 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 if the Mother elects to commence family therapy as outlined above following completion of three (3) months of family therapy the child commence spending time with the Father for two (2) hours each alternate weekend, such time to occur at the K Contact Centre or the first available Contact Centre between Brisbane and the Gold Coast, and that the parties will adhere to the policies of the Contact Centre without breach.

2. That in the event that the Father is hospitalised in regards to his mental health, all telephone communication between the Father and the child 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 child.

IT IS FURTHER ORDERED:

1. 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 THAT:

1. 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 siblings B and C.  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. It is noted that the Father’s current partner Ms L is willing to advice the Mother within seven (7) days in the event she separates from the Father.

E.The Court notes this Order is made with the knowledge that there is an existing Domestic Violence Order between the Father and the Mother which names the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chadwick & Lacy 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: BRC 7839 of 2011

Mr Chadwick

Applicant

And

Ms Lacy

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter concerns the child, J Chadwick, born in 2009.  He is currently about three and a half years of age.  Like his half siblings, he has not spent time with his father since March 2011 when he was about two years and three months of age.  It is not, I think, in dispute between the parties that he has really no relationship with his father at this stage given his age, the age he was when he last saw his father and the passage of time since then.

2. I do not intend to canvass in any great detail the events of this matter, save to say that J’s father had been hospitalised in 2008 in relation to mental health issues and was again hospitalised in March 2011 and July 2012.  He has been diagnosed as suffering from bipolar Affective disorder which requires ongoing medical intervention.

3. As is the case in the matter of Chadwick & Chadwick, after three days of evidence, the parties were able, over a number of hours of discussion, to negotiate a series of comprehensive orders.  There were, I think, two matters outstanding. As is the case in the matter of Chadwick & Chadwick, I consider it to the significant credit of each of J’s parents that they have been able to reach agreement about so many matters relating to him.  I am left in no doubt, because of their actions in this regard, that both of them wish the very best for J in the future. 

4. As these proceedings are proceedings for parenting orders, 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 so, I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.  I must regard J’s best interests as the paramount consideration in deciding whether to make a parenting order.  Given that this is an interim order and that the parties are agreed J’s mother will have sole parental responsibility for him, the question of the parenting orders to be made is, at large, subject always, as I have said, to his best interests being the primary consideration.

5. I turn then to deal first with the issue of whether the time that the parties are agreed J should spend with his father on a supervised basis at the K Contact Centre or other contact centre between Brisbane and the Gold Coast should commence after two or three months of family therapy and whether, when it does commence, it occur on a monthly basis for the first six months before moving to fortnightly visits, or whether it should commence immediately with fortnightly visits. 

6. Counsel for the Independent Children’s Lawyer reiterated the submissions made in the matter of Chadwick & Chadwick: namely that, given that the parties are agreed about embarking upon a process of allowing J to develop a relationship with his father within the safe environment provided by a contact centre, such time should commence sooner rather than later, that two months of family therapy would be appropriate and that, given J is younger and has a less active memory of his father, it would be in his best interests to move forward with his relationship with his father as fast as possible in terms of allowing him the opportunities to commence, develop and maintain an ongoing and meaningful relationship with his father.

7. Counsel for the Independent Children’s Lawyer also submitted that, given J’s age, it was even more appropriate that time, once it commenced, occur on a fortnightly basis, because the purpose of such time is to allow J to build a relationship and to build on each previous period of time with his father rather than requiring him, because of the gaps between visits if they were to occur monthly, to commence the re-establishment process afresh each time. 

8. Counsel for the father adopted the submissions made by Counsel for the Independent Children’s Lawyer.  He submitted, in addition, insofar as the issue about the commencement of time (namely whether it should be after two or three months of family therapy have occurred) whether a month would make any substantive difference to the reintroduction of J to his father.  Counsel submitted that, at the commencement of the trial, J’s mother was opposed to him spending time at all with the father.  Counsel relied upon the evidence given by the Family Report writer in her second report at paragraph 125.  He submitted I would be persuaded that J’s mother is willing to engage in the process of introducing J to the father; that she is supportive of him developing a relationship with this father and that I would be comforted, given her demonstrated parenting capacity and expression of willingness to engage in supporting J through this process, that it is in his best interests time commence as soon as possible.    

9. In essence, his submission was that, once the decision to commence time has been made - as it has - time should commence without delay.  Counsel also relied upon the mother’s evidence as contained in paragraphs 57 to 65 of her affidavit of November 2012 wherein she described J as an outgoing and active child who has met all of his developments.  Counsel submitted that, because of this, it is more likely than not that J would be able to engage with and participate in the time with his father in a supervised environment sooner rather than later.

10. Counsel for the mother submitted I would be persuaded to order the commencement of time after three months of therapy had occurred.  She did so on the basis that, in J’s case - unlike the position for his half siblings, the Chadwick children - he does not have the additional support of a therapist.  Counsel also relied upon the opinion of the report writer to the effect that the success of J developing a relationship with his father was entirely dependent upon his mother’s support for the same.  I infer from that submission that she was really submitting that the mother should be listened to in terms of her assessment of how long she thinks she will need in the process of family therapy in order to maximise the prospects of her supporting J’s relationship with his father.

11. Counsel for the mother also submitted that there should be a gradual reintroduction – relying on paragraph 125 of the Family Report - and that, by making time occur on a monthly basis for six months, it would be more beneficial and less stressful for J.  Counsel also submitted that, if I were persuaded to make the commencement of J’s time with his father commence after three months of family therapy, by that time the father would have spent potentially at least one or two visits with the Chadwick children before undertaking and commencing visits with J. 

12. Counsel for the mother submitted that, because her client had experienced the father in a different way - without the benefit of knowing him when he was fully well - that she should be permitted three months of family therapy in order to deal with her experiences.  Counsel also submitted that the additional month would provide to the father the opportunity to demonstrate stability in his mental health functioning.  Counsel further submitted that, in the event the father suffered a relapse and was re-hospitalised, there would be a necessary cessation of his time with J and that, if this occurred, there would be less emotional impact upon J if he had only been spending time with his father on a monthly basis rather than a fortnightly basis.

13. The Family Report writer says in the second Family Report that J’s reintroduction to his father should recommence in a supervised and contained environment at the same time as his half siblings, B and C, until he is comfortable.  Despite this recommendation, the parties are agreed that the children’s time – that is, J’s and his half siblings’ time occur with their father on an independent basis.  As would be apparent from a perusal of the transcript of proceedings yesterday, I have already indicated my agreement with such proposal in the terms agreed by the parents.

14. I accept the evidence of the report writer that J has a secure and loving attachment to his mother and that his bond with his father has been disrupted.  I accept the Family Report writer’s opinion that, as noted above, the success for J in terms of a rebuilding of a relationship with his father is entirely dependent upon his mother providing support because she is the parent to whom he defers in terms of guidance, approval and reassurance.  I also accept the Family Report writer’s evidence that, with the passage of time and therapeutic intervention, J will cope with a gradual re-establishment of contact with his father. 

15. I think it is also relevant to note the report writer’s evidence to the effect that Ms Lacy (unlike Ms Chadwick who has experienced both a well and an unwell Mr Chadwick) has only experienced the father in an unwell state - to whatever degree.  I note also that J’s father considers his mother to be a very good mother who, at all times, cares for and supports J.  On the basis of the evidence before me and taking into account the matters to which I have so far referred, I consider it is in J’s best interests that his time with his father commence after his mother has engaged in three months of family therapy.  I do so, because I consider that, to whatever extent, her experiences of the father have been, in a sense, different to those of Ms Chadwick. 

1. I accept and find that she has known the father whilst he has been at varying degrees and stages of ill health as a consequence of the manifestation of his mental illness.  I consider that, as the success of J’s commencement, development and maintenance of a relationship with his father depends very much upon his mother supporting that - outside of the time he spends with his father at the contact centre - it is preferable to afford to her the maximum opportunity to deal with the issues that have formed part of the hearing before me.  I also consider that, if J’s time commences after three months of family therapy, Mr Chadwick may, by then, have had some time on a supervised basis with his older two children. 

2. I consider it may be desirable for the father not to be required to undertake and commence two lots of supervised time with two different sets of children at two different contact centres within the same month - if there is a staggering of this process, it may well be that it is more beneficial to him and, therefore, to the children. This will also maximise the prospect of the process not being overwhelming for the father, a thing that would not be in J’s best interests nor of his half siblings. 

3. I also consider that if there is a staggering of the commencement of time, it will provide to Mr Chadwick the opportunity to process and deal with whatever interactions may occur during the course of his time with each of his children. 

4. However, once the time between J and his father commences, I consider it is in J’s best interests that such time occur on a fortnightly basis rather than a monthly basis for six months, as is proposed by his mother.    

5. I do so, because I consider that, given his age, frequency is vitally important to maximise his opportunity to develop the best relationship he can with his father.  I consider that, if visits were to occur on a monthly basis, he would be placed in the situation each month of having to recommence the “getting to know” process rather than being placed in a situation of being able to build upon the previous visit. 

6. For the reasons I have given, I intend to make orders consistent with those which I have outlined following the completion of a process of going through the proposed draft order with the legal representatives.

7. As noted in the matter of Chadwick & Chadwick, I will direct that any further applications or contravention applications be listed before me.  I will also ensure that the order as issued by the court contains notations in terms of clauses (a), (b), (d) and (e) of the proposed draft.  I will also then, consistent with what I have said I think is the appropriate course in relation to Chadwick & Chadwick list this matter also for mention at the same time, on the same date, as Chadwick & Chadwick on a date to be advised with legal representatives given liberty to appear by telephone and there being no requirement for the attendance of the parties.

I certify that the preceding twenty-two (22) 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