Clements and Murdoch - [2008] FMCAfam 1090

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLEMENTS & MURDOCH

[2008] FMCAfam 1090

FAMILY LAW – Parenting orders – interim application – children premature twin babies – whether supervised time provides adequate protection – whether father’s proposal practical.

Family Law Act1975 (Cth), ss.60CC, 61DA
Federal Magistrates Act1999, s.39

Re K (1995)

Applicant:

MR CLEMENTS

Respondent:

MS MURDOCH

File Number:

DGC 2739 of 2008

Judgment of:

Phipps FM

Hearing date:

17 September 2008

Date of Last Submission:

17 September 2008

Delivered at:

Dandenong

Delivered on:

17 September 2008

REPRESENTATION

Solicitor for the Applicant:

Mr R. Halliday

Solicitors for the Applicant:

Robert Halliday & Associates

Counsel for the Respondent:

Ms M. Vohra

Solicitors for the Respondent:

Rudd & Co

ORDERS

That pursuant to s.39 of the Federal Magistrates Act1999 this matter be transferred to the Family Court of Australia.
That the parties attend upon a psychiartrist as agreed between their respective solicitors, and failing agreement as may be nominated by the Independent Children’s Lawyer if one is appointed or as otherwise maybe ordered by the Court, for an assessment and Report such Report to consider as the psychiatrist considers relevant:
(a)The parties respective history of drug use;
(b)The father’s past history of alcohol use and attemptsat self-harm;
(c)Any diagnosis of either party of a psychiatric or psychological condition;
(d)The effect if any of any Order for the father to spend time with the children upon the mother;
(e)Any other matters the psychiatrist considers relevant.
That the parties equally bear the costs of such psychiatric assessment and report, the father’s share being subject to legal aid funding.
That the parties do all acts and things as may be reasonably required by the psychiatrist to complete the assessment and report, including the signing of any medical authorities for the provision of information.
That the psychiatrist be authorised to inspect all subpoenaed documents.
That otherwise no orders are made on the interim applications of the parties.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 2739 of 2008

MR CLEMENTS

Applicant

And

MS MURDOCH

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The application concerns twins who were born in 2008. They are [X] and [Y]. The applicant is their father, and the respondent, the mother. They are now seven months old but they were born three months premature and so they have significant care and health issues which are relevant to this application.
The application is an interim application. The father's proposal is that until further order, both children live with the mother and that he spend time with them, supervised by his mother, that is, the paternal grandmother, each Tuesday between 4.30pm and 6.30pm and each Saturday from 10.00am to 12.00pm. Alternatively, he proposes supervision by Ms H, a professional supervisor. Alternatively to that he proposes supervision at a contact centre.
I have reached the conclusion, for reasons which I will give, that the protective concerns at the moment overwhelm the undoubted benefit to the twins of having time with their father and seeing their father.
The mother and father met at the [W] drug rehabilitation centre in April of last year, where both were in residence. The mother had put herself in voluntarily. I am not sure if the father had too. It is irrelevant whether he had or not but that is how they met. The father was there for treatment for an opiate dependence which had come about as a result of leg or ankle injuries he had received for which he was being treated for pain relief with opiates and he needed to deal with the dependence or addiction which followed.
The mother was there because of marijuana addiction, dependence on marijuana. The records show that she was then using three and a half grams a day. She was a very heavy user.
The mother is 24 or 25 and the father is 36. Having met there, they then commenced living together. The mother became pregnant in July 2007. They were living with the father's family.
The father, Mr Clements, as well as the opiate problem has had a significant alcohol problem. He had problems with alcohol and alcohol dependence in 2007. He acknowledges that previously he has used amphetamines and other drugs, even heroin at some stage in the past. He was readmitted to Windara in September and October 2007 because of the alcohol problems.
He came out and was with the mother in this case, Ms Murdoch, at [G]. On 1 October 2007 there was an incident which resulted in his arrest and subsequent conviction for wilful damage, theft of a motor vehicle and driving while disqualified. He was sentenced to 12 months imprisonment with a non parole period of five months. That was early in October 2007. He was imprisoned until March 2008.
I do not need to go into much detail about what happened but he was affected by alcohol. An altercation came about. He took the keys to the mother's car which was parked at the front of the house. He opened the car, got into the car and started it. His mother attempted to stop him from going by moving her car in the way of the car the father was in. He drove into her car deliberately and drove off down the street. The police were called. He was subsequently arrested, charged, convicted and imprisoned.
When the twins were born in February 2008, he was in prison. By the stage when he came out in March 2008, the babies were still in intensive care or the premature baby care section of the [R] Hospital and the mother was living in supported accommodation, provided as part of the hospital's program, at [R].
The father moved in with the mother. How that came about is disputed between the two parties, between Ms Murdoch and Mr Clements.

Mr Clements says they resumed their relationship. The mother says that he moved in. There would seem to be an inference, that would be a fair way of describing her evidence, that that was against her wishes.
The mother's use of marijuana was still a problem at that stage. The medical records show that she saw a psychiatrist in February 2008 as well as at other times. She was still using marijuana at that stage. She had some treatment for depression at about that time or a little bit earlier.
The parties' relationship ended on 4 April 2008 when they were evicted from the [R] Hospital accommodation. The mother alleges an occasion of significant violence, an assault on her and abuse by the father. He denies that. But whatever occurred, it resulted in them being evicted. It was shortly after that that the twins were discharged from hospital and they have since lived with their mother in her family's home in [T].
Since the birth and currently, the mother has been feeding the twins by expressing breast milk and then the children are being bottle fed. They were not strong enough to suck when born and that is still happening. Her affidavit which was sworn a couple of weeks ago, says she has to do that three hours a day. She describes a number of health problems that the babies have had.
There is an issue raised by Mr Halliday on behalf of the father that there is no detailed material showing what those health problems are but it is a fair assumption that they have the types of developmental problems that three-month premature babies would have when they are only seven months old.
The father is proposing supervision by his mother. In April 2008, the mother obtained an intervention order against the father relying on the incident in October. His mother, that is, the grandmother, obtained an intervention order against the father, so both of those are current.
Part of the father's material is a report by Dr K, a consultant psychiatrist. It is dated 31 July. That report was made on referral from the father's general practitioner. Dr K says that:
Mr Clements reports a history of learning and behavioural problems since his early school years. He has difficulty concentrating. Often got into fights. Misses words while reading or writing. Although he was apparently assessed by a psychologist in primary school, it is not clear whether he received any formal diagnosis. He was seen by Mr H, psychiatrist, in August 2007 and told he had attention deficit disorder but was not offered any treatment.
Dr K then says this:
While in gaol for car theft in September 2007-
it must have been later than that because it was October 2007 the gaol sentence commenced
he developed a two-month episode of elevated mood, hyperactivity and reduced need for sleep and was subsequently given the diagnosis of bipolar disorder and was started on Epilim. Later he also seemed to have developed depression and Avanza was added. He stopped Epilim on his release from prison in May 2008 and wants to stop Avanza as well as he blames both drugs for poor concentration. There is a past history of morphine and buprenorphine addiction developed after he broke his ankle. He denies drug use at the moment. During the assessment he did not exhibit any anxiety, depressed or manic systems and was cognitively intact.
Dr K says that Mr Clements has insisted on a trial of stimulants which Dr K was reluctant to consider in view of his uncertain diagnosis and past opioid dependence. Then Dr K says this:
He needs full neuropsychological assessment and liaison with prison psychiatric services to find out whether he had an obvious manic episode and whether he still requires treatment with mood stabilisers. I believe that Forensicare would be in a better position to provide a multidisciplinary assessment, that is psychologist, psychiatrist and drug and alcohol specialist.
Both parties have sworn affidavits which are quite extensive. The father has two affidavits filed on 6 August and 15 September 2008. He also has an affidavit of his mother, Ms C, filed on 15 September 2008. The mother has filed an affidavit on 10 September 2008. Her response is dated the same date.
I have been referred to various parts of subpoenaed material from the [R] Hospital. I have been referred to the father's police record. There are some offences earlier than 2007 starting in the 1990s and going through to 2005. The [W] records have been subpoenaed and there has been some little reference to them.
Both parties give a fairly extensive history of the relationship. The mother alleges much violence. The father denies that. In particular, as I have said, there is a dispute about what happened on 4 April 2008. The mother annexes a statement by a social worker from the [R] Hospital referring to an incident which happened after 1 April 2008 where the social worker says that she heard a raised male voice. It was

Mr Clements. She called him into the office and he was being very critical of the mother.
In terms of the relevant provisions of the Family Law Act1975 (Cth), s.61DA, presumption of equal shared parental responsibility, and what follows from that is of no assistance in this case. It is the best interests of the children which is the paramount consideration and so far as the s.60CC considerations are concerned, the relevant ones are the benefit to the children of having a meaningful relationship with both of the children's parents, the need to protect the children from physical or psychological harm and then allied with that the nature of the relationship with the children with each of the children's parents and the capacity of each of the children's parents to provide for the needs of the children. Family violence is relevant.
While the twins were in hospital the father saw them frequently and touched them as to the extent that it was possible given the circumstances they were in. He has seen them once since they came out of hospital. The need for babies to have time with parents to start developing their relationship is self-evident. That is the first of the primary considerations, plus the relationship of the children with their parents.
But as I said earlier, I think the risk factors here overwhelm that benefit. The mother has had a recent history of marijuana dependence and recent independent medical evidence that she is still using marijuana. There is no current evidence about it and it is possible that she is still using marijuana. There is medical evidence of depression. There must be a risk that the mother in this case could again suffer depression, perhaps suffer a bout of postnatal depression which might put the babies at risk. She is their primary carer, she is breastfeeding them by expressing. The children have particular care needs because of their age and premature birth. Quite apart from anything else, it could only be in fairly carefully controlled circumstances and for a limited time that the children could be taken away from their mother.
The father's affidavit says that he has done some drug screens which show they are clear. The mother raises issues about whether they were properly supervised or not. I cannot determine whether that is correct or not, but they are clear drug screens. I have referred to Dr K's report which shows that there is a need for investigation of the father's current mental state, use of drugs and use of alcohol. He obviously recognises the problems because he proposes a supervisor, but the problem is that the proposed supervisor is his mother. The mother in this case,

Ms Murdoch, raises a series of objections to the grandmother as a supervisor and makes allegations about incidents in the past when she has been caring for other grandchildren. The mother is critical of the cleanliness of the house in which they live and the living arrangements. All of that is disputed.
Relevant to the grandmother as a supervisor and keeping the babies safe, is that the last time all three were together, that is the father

Mr Clements, the mother Ms Murdoch and the grandmother Ms C, was 1 October 2007. Many things have happened since then, but on that occasion Ms C was not able to control her son's behaviour. There is too high a risk factor involved in using the grandmother as a supervisor. There is still a current intervention order by the grandmother against the father.
So far as Ms H is concerned, although it is not on affidavit, Mr Halliday says that Ms H proposes that the time take place at the mother's house supervised by Ms H in the absence of the mother. In practical terms, I do not see that as something which can be done.
I was referred to the mother's mental state. If something went astray with the arrangements when the children were being collected by the grandmother or something happened with one of the babies during the two hours and it was necessary to call on the mother to come and assist and some sort of dispute or altercation occurred between the mother and the father or the mother and the grandmother, that would be another stress in the mother's life. It would be another factor which may not assist her mental state and may help push her into a depression or even postnatal depression which would be a significant risk to the children.
What is proposed I consider impractical. It is not in an affidavit, but what the father is proposing is that the time take place at the paternal grandfather's house which is in Bentleigh. The grandmother and grandfather do not live together. There is no affidavit from the grandfather. There is no affidavit about the house. The children would need to be collected by the grandmother and taken to the grandfather's house and taken back again. Given the condition of the children, seven-month twins born three months premature, there is not enough information about the practicalities of how that could happen for me to be confident about making an order that the children would be safe. For all those reasons I consider that the risk factors are far too strong in this case. They do overtake the benefit to the children of seeing their father.
Ms Vohra, for the mother, has proposed that the application be transferred to the Family Court of Australia. That was initially opposed by the father but now the case has reached this stage, that is no longer opposed. The benefits of transferring to the Family Court of Australia are that the Family Court processes and resources are better able to deal with this case than the Federal Magistrates Court of Australia at Dandenong.
It is a case which will probably almost certainly involve a number of interim hearings. The first thing to be resolved will be to work out a way in which the father can commence or recommence seeing the children, which almost certainly will be under supervised circumstances and then to move it on from there to a position where there is a stability in the arrangements for the care of the children. It is a case which meets a number of the criteria in Re K for appointing an Independent Children's Lawyer. If I made an order for the appointment of an Independent Children's Lawyer today on 17 September 2008 in the Federal Magistrates Court of Australia, I cannot have any confidence that the appointment would take place, given the limitations of funding of the Victorian Legal Aid Commission. I could order that the parties fund the cost of the Independent Children's Lawyer but I do not have any information before me at the moment about the parties' particular financial circumstances and whether they can fund an Independent Children’s Lawyer.
It is a case which would benefit from early intervention by a family consultant. It is more likely to be able to be done in the Family Court of Australia than in the Federal Magistrates Court of Australia. It is a case which would benefit from the attention that can be given to a children's case under the case management procedures in the Family Court.
Both parties agree that there should be a psychiatric assessment for both parties. There are psychiatric issues about both parties. From the reasons I have given the need for a psychiatric assessment for both parties is clear.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 7 October 2008