Coppel & Herz
[2008] FMCAfam 551
•15 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COPPEL & HERZ | [2008] FMCAfam 551 |
| FAMILY LAW – Parenting orders – interim orders – whether mother’s mental state a risk to child. |
| Family Law Act 1975, ss.60CC, 61DA |
| Goode v Goode (2006) FCA 1346 Re K guidelines (1994) FLC 92-461 |
| Applicant: | MS COPPEL |
| Respondent: | MR HERZ |
| File Number: | DGC 1339 of 2008 |
| Judgment of: | Phipps FM |
| Hearing date: | 15 May 2008 |
| Date of Last Submission: | 15 May 2008 |
| Delivered at: | Dandenong |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms C.J. Jenkins |
| Solicitors for the Applicant: | Jane Baldwin |
| Counsel for the Respondent: | Mr M. Wilson |
| Solicitors for the Respondent: | Nicholes Family Lawyers |
ORDERS
The matter be adjourned for Interim Hearing to 22 July 2008 at 10.00am in the Federal Magistrates Court of Australia at Dandenong.
All previous orders be discharged.
That pursuant to s.68L(2) of the Family Law Act1975 the child/ren D born in 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
That forthwith upon appointment by the said Victoria Legal Aid or otherwise the child/ren’s representative file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
That until further order the child live with the mother.
That the child spend time with the father;
(a)From 12.00noon Wednesday to 12.00noon Thursday each week;
(b)From 12.00noon Saturday to 12.00noon Sunday each week.
That changeovers take place at [X] Police Station.
That the father deliver the child to the mother at 10.00am 16 May 2008 at [X] Police Station.
That the mother continue to take all prescription medication and comply with the directions of the treating doctors and any health service to which she is referred.
That the father’s application for an independent psychiatric assessment is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Coppel & Herz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 1339 of 2008
| MS COPPEL |
Applicant
And
| MR HERZ |
Respondent
REASONS FOR JUDGMENT
The application concerns Ms Coppel and Mr Herz’s child, D, born in 2008, now just some five months old.
The parties relationship prior to D's birth is not particularly significant. The mother and father are quite young, the mother is 19 and the father is 23. They had a boyfriend‑girlfriend relationship for about 12 months. That included the mother, Ms Coppel, living in the father's parents' home, to some extent. Both at the moment and also during that time their homes were with their parents.
Immediately after the birth of D the mother had a postpartum psychotic episode. The best way to describe what happened is to refer to a letter written by Dr M, psychiatric registrar at the [X] Hospital in the mother and baby unit. That says that the mother was admitted to the [X] ward between 30 January and 6 February 2008 for acute treatment of psychosis, diagnosed as postpartum psychosis, and then she was transferred to the [X] Hospital mother and baby unit from 6 February to 26 March 2008.
Dr M describes the mother's social family situation as complex:
[Ms Coppel's] social family situation is complex and is an ongoing stressor. She and [Mr Herz] broke up during her admission to the mother and baby unit due to the complex family issues. [Ms Coppel's] mother has multiple sclerosis and associated cognitive impairment and [Ms Coppel's] stepfather is controlling and over‑involved. [Ms Coppel's] parents do not get along with [Mr Herz’s] parents and vice versa, and [Mr Herz] and [Ms Coppel's] father strongly dislike each other. [Ms Coppel's] mental state is fragile and very quickly impacted on by these family issues.
Then it goes on to say:
Ms Coppel was stable enough to be discharged, but is at high risk of relapse.
During the period in the mother and baby unit D was with his mother in the unit, but she had several periods, several days and weekends, where she came out, and during that time there was at least one weekend where D was with the father and his parents. The father,
Mr Herz, spent a lot of time at the mother and baby unit, as did various members of his family.
The mother was discharged with the baby on 26 March 2008. In an affidavit of the father, he describes her as unilaterally discharging herself. The hospital records show that that is not so. I have just referred to the psychiatric registrar's statement that she was well enough to be discharged.
When she came out on 26 March 2008, D went to his father. The mother says that was for just a couple of days. The father says that the mother agreed that D would go with him for a time until they worked out what the care arrangements were going to be.
The mother then alleges that on 29 March 2008 when, she says, D was supposed to be returned to her, he was not. The father refused to return D, and that led to disputation and conflict between the parties. Up until 29 April 2008, Ms Coppel saw the baby on occasions, and there was one occasion overnight, but the time was irregular.
Solicitors became involved. That led to an application by the mother for a recovery order which I dealt with on 29 April 2008. On that day I ordered that the mother spend time with D each Sunday, Monday, Wednesday and Friday from 2.00 pm until 4.00 pm, and otherwise the child spend continuous time with the father.
At that time the material before the court was an affidavit by each of the parties, which contained much disputed material. It was clear that the medical records were necessary. The application was adjourned over until today.
I need to follow the process which the Full Court of the Family Court has described in Goode v Goode (2006) FCA 1346, particularly in paragraph 82.
The competing proposals of the parties are these. The mother's proposal is that in the interim D should live five days with her and two days with his father in this way: 12.00noon Wednesday to 12.00noon Thursday and 12.00noon Saturday to 12.00noon Sunday with his father, and otherwise with her. The father's proposal is that D should live with him and spend time with his mother on each Tuesday, Thursday and Sunday for three hours, 2.00pm to 5.00pm. He proposes that that should continue until there has been an independent psychiatric assessment, which would take about two months, and then the matter be fixed for a further interim hearing in two months' time.
Both parties have affidavits filed by family members. It is apparent that there is much conflict between the family members, much dispute about what happened on different occasions. There are some detailed descriptions of events during Ms Coppel’s labour, allegations and counter‑allegations about family members' behaviour. Much, if not all, of that type of material is disputed between the parties.
I say two things about that. First, it is an interim hearing. I cannot decide disputed matters of fact. Secondly, given the extent of the hospital records, I do not consider that what is described in those affidavits by the parties and family members, about what has occurred and what doctors have said and people's behaviour, helps me. What is important is the records.
I have referred to Dr M's discharge letter. I have referred in part to give the background. Dr M goes on to say that the mother's symptoms at the time of initial presentation included persecutory beliefs about [Mr Herz] and his family, that they were trying to trick her and were holding her captive; auditory hallucinations; whispering and baby crying. It then says:
While these symptoms did emerge at times during admission, there was no evidence at time of discharge. Her insight is limited. She is currently compliant with medication, but is keen to come off it. Her insight into her family situation is also limited.
There is a side note, obviously written by the doctor, about the medication:
She is keen to come off it, which we don't advise at this stage.
The medication was Alazopine, Valproate and Sertraline, which is referred to in a subsequent report by psychiatrist Dr D. Alazopine is an antipsychotic medication, Sodium Valproate is a mood‑stabiliser and Sertraline is an anti‑depressant.
The medical records show that the Sodium Valproate was increased during the mother's stay at the mother and baby unit, it was doubled. The Sodium Valproate is twice daily. It is not clear from Dr M's report whether that is once daily or twice daily, but the inference seems to be that the medication now as described in Dr D's report is the same medication as at discharge.
Then Dr M goes on:
Due to family situation and our uncertainty about D's safety, especially if [Ms Coppel] relapses, we have made a notification to the Department of Human Services. She has been referred to a private psychiatrist and has an appointment on 9 April -
in fact she went to Dr D of [X], which is a young adult mental health service. Dr M says this:
However, given the rapid fluctuation in mental state in response to family stressors observed during the admission and that these stressors are ongoing and that [Ms Coppel] has limited insight, she is at high risk of relapse, and therefore a potential risk to D.
Dr M then goes on to say:
She would benefit from case management via a first episode psychosis team.
The patient discharge summary dated 18 April 2008 elaborates. The description of what had occurred is as in Dr M’s letter. It then goes on to refer to the family situation:
Family meetings were held with [Ms Coppel's] parents to address the issues of conflict between [Mr Herz] and M the father and mother's stepfather and form a plan for ongoing contact between [Ms Coppel] and her parents.
The discharge summary says:
We felt that family stress was going to play an ongoing significant role in perpetuating [Ms Coppel's] illness and that this needed to be addressed.
There were planned weekend visits to her family. The summary says they they did not go as planned and that the two weekends were not a success. On the discharge summary on the day prior to discharge the person writing the report, which may be the psychiatric registrar, says that:
I met with [Mr Herz] and [Ms Coppel]. [Ms Coppel] presented as angry and agitated, quite insightless and beliefs were not amenable to reality testing. She presented as quite psychotic.
The summary then says her mental state had improved the following day and she was seen with her family by Prof B, who had seen her earlier. The summary then says:
Throughout the admission [Ms Coppel's] baby care was safe and appropriate. But there was a notification to DHS prior to the discharge, due to the fragility of her condition.
Also noted in the report is that when she was 16 the mother had had a work harassment or a sexual harassment episode from which she suffered post traumatic stress disorder. She was prescribed antidepressants and says she ceased them soon after.
There is other material to which I have been referred, which have become exhibits, which again show the diagnosis and the risk of relapse. There is monitoring by the [X] Health Service. In community progress notes there is a note that on 28 April 2008, which is the day before the case first came to court, the mother stated she did not agree with the diagnosis the doctor had given her - that is the postpartum psychosis - and she does not believe she needs the medication:
Denied psychotic symptoms. Was easy to engage in conversation.
The discharge report says that the parties planned on a shared care arrangement.
The significant issue in dispute is to what extent does the mother's condition present a risk to D if D is in her care.
I have to identify the uncontested relevant facts.
I consider the uncontested relevant facts are these: that the mother suffered postpartum psychosis with an acute episode, that it requires medication for treatment, that part of the stressors are her relationship with her own family, her mother and her stepfather; there is a significant risk of relapse and if she relapses, she is a danger to D.
Where D has been in the five months of his life is uncontested. It is clear from the medical records that when the mother was discharged on 26 March 2008 She was discharged on the basis that she would be taking D with her. Because of the risk factors, there was a notification to Department of Human Services. The doctors caring for her at that stage were discharging her with her baby on the understanding that there would be a shared care arrangement between the mother and father. It is also uncontested that that did not happen and that the principal amount of care since that time has been by the father.
I have to identify the matters under s.60CC of the Family Law Act1975 (Cth) which are relevant. There are two primary considerations: the benefit of a meaningful relationship with both parents; and the second one, very significant here, the need to protect the child from physical or psychological harm. If the mother relapses, there is a high risk of physical or psychological harm to D.
The additional considerations are, first, the nature of the relationship with each parent. This is a young child, a baby. The mother was the child's primary carer for the period that she was in the mother and baby unit, but with a significant involvement by the father. The need for a child to develop a bond with each parent in the early weeks and months is well known, and in particular the bond between a mother and child.
Other considerations are the willingness and ability of each of the child's parents to facilitate and encourage the relationship between the child and the other parent, the likely effect of any change in the children's circumstances and the capacity of each of the parents to care for the child and to provide for the needs of the child, including emotional and intellectual needs.
Dealing with the last one, I am satisfied that both the mother and father have the capacity to provide for those needs. The mother has the capacity for as long as her mental state stays as it is now; that means as long as she is taking her medication and she does not relapse. The father has shown that he can care for the child's physical needs. There are some issues about it, but I accept that he can. The mother has had considerable help because when she has had the care of the child she was largely in the mother and baby unit.
I go back to the need to protect the child from harm, I will deal with the father's application for an independent psychiatric assessment. I do not think there is any issue about the mother's medical condition at the moment. She suffered from postpartum psychosis, she had an acute attack of psychosis, and she is at risk of another attack, she is at risk of relapse. But she has not relapsed.
I mentioned Dr D's report. It is dated 8 May 2008. He has met with the mother on two occasions and met the mother and stepfather on one occasion. He describes the history, describes the medication. He says she does not use illicit drugs nor alcohol, and that is also contained in the notes. There is no allegation that she does. He said she showed no evidence of being currently unwell, impresses as sincere and honest. He says:
IN summary, I believe that [Ms Coppel] has experienced a postpartum psychosis which has symptomatically resolved. If she complies with treatment, her prognosis is good. She will be supervised by family, in respect of her own health and care of her child. A number of psychiatric and maternal child services have been and can be put in place to assist Ms Coppel.
Mr Wilson, for the father, rightly makes the point that Dr D refers to supervision by the family yet the hospital notes and psychiatrist's reports show that the family is a significant part of the stressors, her relationship with her family.
What I deduce from all the medical material is this. That the mother is not a risk to D as long as she does not relapse. She has not relapsed up to now. She is taking her medication and she does have access to the assistance to which Dr D refers. I was referred to the [X] Health Service community progress notes of 29 April 2008. That one was specifically tendered.
That is not the last of the notes. Plainly, she has access to that service and any order I make will include an order that the mother continue with her medication and follow the directions of any doctors and mental health services that she receives. As she is at the moment, she does not present a risk to D. She is capable of looking after D. The risk is if she relapses.
I do not consider that at this point an independent psychiatric assessment would assist at all and that it would do no more than confirm what the medical material shows. That material shows the psychiatric involvement in her care by psychiatric registrar, Prof B and then Dr D. The inference from the medical material is that if she relapses, she will have a psychotic episode. It is most likely it would require her to be hospitalised again as an impatient, whether as a voluntary patient or an involuntary patient, and she certainly would not be able to care for D. If it happened, D would be at risk. An independent psychiatric assessment would not add anything.
Balanced out against that is the benefit to D of a meaningful relationship with his parents, and his relationship with his mother. He needs to develop the mother‑child bond. The hospital report shows the bond was developing as it should, by the time she left the mother and baby unit of the hospital.
There is a dispute about the circumstances in which D went into his father’s care. In an interim hearing I cannot resolve a dispute about what the parties had agreed around the time of discharge.
However I consider it unlikely that the mother had agreed that D would go into the care of his father for an indefinite period, with her seeing D only for a period of some hours during the day, as is now proposed by the father. The mother's condition is clearer now than it was back on 26 March 2008. On 26 March she was well enough to be discharged. On the 25th she was not. Dr D's report shows that she has remained well. In the immediate term she has not relapsed.
But I consider it most unlikely that the mother agreed what the father is currently proposing should happen. She says that she agreed that D would go with his father for a couple of days and then come back to her. Perhaps the truth is that it was not as definite as that.
What I do have to consider is what is necessary in the best interests of D for him to develop a meaningful relationship in the context of a five‑month‑old baby who has now been away from his mother for some time and in the context of the mother at the time of discharge in March being the principal carer.
I do not consider that the risk of relapse is such that the mother should only be seeing D for a few hours each day. There is a risk of relapse and I acknowledge that. In one sense this is a risk assessment case, balancing the benefit to D of a close relationship with his mother against the risk of harm. There is a further risk in that if D does not spend significant periods of time with his mother, even in the next few weeks, that that may be harmful to him, not only harmful to his relationship with his mother but ultimately harmful to his psychological wellbeing; the literature on the relationship between a very young child and parents suggests that.
In those circumstances, I consider that D's best interests would be met by the mother's proposal. That is, that he spend the majority of time with her and then two days, which includes overnight, with his father.
On 29 April I made an order for the appointment of an Independent Children's Lawyer. I make this observation. This case meets probably four or five of the Re K guidelines (1994) FLC 92-461, clearly a case where an Independent Children's Lawyer is needed. Because of the funding constraints, one was not appointed.
The funding arrangements for Independent Children's Lawyers from the Victorian Legal Aid Commission are that there are 40 each month for the Federal Magistrates Court and they are allotted starting at the commencement of the month. On 29 April 2008, the correspondence shows, the allotment had run out. I do no more than make that observation. I will make another order for the appointment of an Independent Children's Lawyer, and I hope this time it is acted on.
I think this is a case which does need to come back in probably two months' time. I do not see that it is a case where it can be said now that it will be ready for final hearing at the end of the year.
DISCUSSION
An application has been made to stay the order which I have just said I will make. The application is made on the basis that the father proposes appealing and his legal advisers wish to make inquiries about how long it would take for an appeal to be heard and then consider whether they would make an application for a further stay. It is not an application for a stay on the basis that there is an appeal, because an appeal has not yet been lodged, so I am not asked to exercise that power. I am asked to exercise the general power the court has either under the rules or generally to stay the operation of an order.
I do not propose to stay the order. I have reached quite a clear view. The only basis for a stay in this case would be that the immediate operation of the order would put the child at risk. But the risk which the father puts forward is quite clearly not that the mother is as she exists at the moment, or as her mental state is at this time, a risk to the child, but that there is a risk if she relapses. So it is not circumstances where, if I do not grant a stay now, there is the risk of an irretrievable situation. There is not. I do not see a basis for a stay.
One thing I need to add to the reasons. I did not mention s.61DA, presumption of equal shared parental responsibility and the consequences that follow from that. That is because in the way this case has been conducted the question of equal shared parental responsibility and what might follow was not relevant to the issues the parties were putting before the court.
I discharge all previous orders. Until further order, the child, D, born in 2008, live with the mother. That the child spend time with the father from 12noon Wednesday to 12noon Thursday each week and from 12noon Saturday to 12noon Sunday each week. That the changeovers take place at [X] Police Station. That the father deliver the child to the mother at 10.00am on 16 May 2008 at [X] Police Station. That the mother continue to take all prescribed medication and comply with the directions of her treating doctors and any health service to which she is referred. I will make an order for the appointment for the Independent Children's Lawyer.
The matter does need to come back. I adjourn the matter until 22 July 2008. The father's application for a psychiatric assessment is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Jan Smith
Date: 2 June 2008
0
0
1