Costello and Costello

[2016] FamCA 1113

FAMILY COURT OF AUSTRALIA

COSTELLO & COSTELLO [2016] FamCA 1113

FAMILY LAW – CHILDREN – PARENTING – Where there is a trial of the father spending unsupervised time with the children –  where supervision requirement by paternal grandparents continue, but thereafter cease – where fathers poor boundaries have now abated to the point where unsupervised time should be trialled – where father is to undergo fortnightly blood testing

Family Law Act 1975 (Cth) s 60CC

Jopson & Lilwall [2016] FamCAFC 262

APPLICANT: Mr Costello

RESPONDENT: Ms Costello

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 787 of 2014

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 6 December 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Susan Gray

Orders

THAT BY CONSENT UNTIL FURTHER ORDER, THE ORDERS OF 12 APRIL 2016 ARE VARIED SO THAT:

1. The children are to spend time with the father from 8:00am each Monday until 4:30pm each Thursday.

2. The mother be permitted to take the children to Melbourne in the period between 4 and 10 January 2017, and in the event that she does so, then the father’s time which he would otherwise spend with the children under these orders is suspended.  

3. Until Monday 2 January 2017, the supervision requirement by the paternal grandparents contained in Order 10 of the 12 April 2016 consent orders, should continue.

4. The father is to undergo fortnightly blood testing, and to produce the results of those blood tests to the Independent Children's Lawyer, so as to demonstrate that he remains compliant with his medication regime. 

5. B (born … 2003) is permitted to attend upon a counsellor of the mother’s choosing, and the parties are to do all things necessary to facilitate her attendance.

AND IT IS FURTHER ORDERED THAT:

1. On and from 2 January 2017, the supervision requirement contained in Order 10 of the Orders of 12 April 2016 cease to apply to the time the children spend with the father.

2. Changeovers of the children are to take place at McDonalds F Town.

AND IT IS FURTHER ORDERED BY CONSENT THAT:

1. A Child Inclusive Conference be conducted at 9:00am on Wednesday 25 January 2017 in Cairns and a report of that conference be provided to the parties.

2. The further hearing of this matter be adjourned to 2:00pm on Monday 13 February 2017 in Cairns.    

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC787/2014

Mr Costello

Applicant

And

Ms Costello

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 12 April 2016, I made consent interim orders relating to the parenting arrangements for the parties’ three children, being B (born in 2003, and hence presently 13 years of age), C (born in 2006, and hence presently 10 years of age) and D (born in 2009, and hence presently 7 years of age) (“the children”).  Those orders provided for Mr Costello (“the father”) to spend overnight time with the children from after school on Friday until before school on Monday each alternate week, and further, that the child B would also spend Wednesday night with him, provided that she continued to undertake ballet on that night. 

2. The orders also provided for the children to spend three nights with the father during each week of school holidays other than Christmas.  However by Order 10, whatever type of time the children were to spend with the father, was to “be in the reasonable vicinity of and supported by one or more of the paternal grandparents, noting that the paternal grandparents agree that they would remain no further than 500 metres from the father.”

3. Because the parties were then unable to agree in relation to the father’s Christmas holiday time with the children, which would likely depend upon the success of the regime ordered in April, I adjourned the matter for further hearing to Tuesday 6 December 2016.

4. On that occasion the parties were again able to agree a number of things.  The first was that during the forthcoming holiday period and thereafter, the children should spend time with the father from 8:00am each Monday until 4:30pm each Thursday.  Also, the parties were agreed that up until Monday 2 January 2017, the supervision requirement by the paternal grandparents contained in the 12 April 2016 consent orders, should continue.  Further, the parties were agreed that the father should be obliged to undergo fortnightly blood testing, and to produce the results of those blood tests to the Independent Children's Lawyer.  The purpose of those tests is to demonstrate that the father remains compliant with a medication regime I shall discuss in detail shortly.

5. Additionally the parties were agreed that B should be permitted to attend upon a counsellor chosen by Ms Costello (“the mother”), and for the parties to do all things necessary to facilitate B’s attendance on her.

6. However the parties were unable to agree upon a critical matter, and that is whether or not after Monday 2 January 2017, the children’s time with the father should require to continue to be supervised by the paternal grandparents.  For her part, the mother was adamant that she would never – ever – agree to the father’s time with the children being unsupervised; the father contended that the supervision requirement was now otiose.  Whilst not positively advocating for the removal of supervision, the Independent Children's Lawyer did not oppose the orders sought by the father.

7. At the conclusion of the hearing on 6 December 2016, I indicated that I proposed to in due course pronounce orders which would not require the father’s time after 2 January 2017 to be supervised, for reasons which I would subsequently publish. 

8. These are the reasons for so ordering.

BACKGROUND FACTS

1. The father was born in 1974, and hence is presently 42 years of age.  He grew up in F Town.  He did well at school and matriculated to the University of Queensland, where he studied qualifying to become a health professional.  It appears as though whilst undertaking his university studies he first began to experience anxiety.

2. The mother was born in 1974, and hence is presently also 42 years of age.  She grew up in Tasmania.  Her initial employment was working with animals, although Dr J, a psychologist who prepared the Family Report in this matter, noted that the mother also holds a degree from the N University.

3. The parties commenced a relationship in January 2002 when they were both 27 years old.  They later married in 2003 and it is agreed that they separated on a final basis on 24 June 2013, after some 11 years together.

4. It is as though for most of their married life the parties lived in F Town.  There the father was employed as a health professional.  During the course of the relationship it appears as though the mother completed post-graduate studies and worked in the public service.  She was so employed when the parties separated, although she ceased that employment in late 2014.

5. It appears plain that from about the time of separation onwards, the father began to suffer from serious psychiatric ill health.  He told Dr J that in his opinion he suffered from “severe reactive depression with anxiety” and “underwent at times, severe emotional dissociative states.”

6. Although initially after separation the father and mother agreed to the shared care of the children, in consequence of that decline in his health from late November 2013 the mother insisted that the father’s time with the children be supervised.  In light of his then mental health circumstances, the father agreed.

7. In December 2013 the mother raised concerns that the father was exhibiting poor sexual boundaries with the children, and that the children were exhibiting sexualised behaviours.  By May 2014, apparently upon advice, the mother determined that the children should no longer spend overnight time with the father and in June 2014 arranged for the Child Protection Investigation Unit to speak with both of the older children (although no disclosures were made) and commenced taking the children to social workers employed by the F Town Sexual Assault Service.  According to the mother, that service indicated that they “felt” the girls had been sexually interfered with, and recommended that the father’s time with them should thereafter be supervised.

8. On 8 November 2014 the father commenced spending supervised time with the children at the Cairns Contact Centre.  It seems not in dispute that the father became distressed at experiencing his relationship with the children in that environment.

9. In January 2015 the mother commenced her present relationship.

10. On 31 March 2015 the father sought interim orders in relation to him spending unsupervised time with the children.  He nonetheless continued to spend time with the children at the Cairns Contact Centre.  However on 15 July 2015 the father indicated that he no longer intended to do so, as he felt strongly that the circumstances of him spending time with the children was neither right for him or them.

11. Throughout all of this time the father was, in summary, still experiencing poor mental health.  Indeed, his psychiatric health had deteriorated on occasion to the point where he ceased to practise as a general medical practitioner, or only did so under supervision.  Some of his behaviour continued to be concerning, evidencing poor professional boundaries and impulsivity.

12. On 2 November 2015 the father’s application for interim orders came before me.  On that occasion I made orders by consent for the father to re-commence spending time with the children (albeit no overnights), initially vigilantly supervised by specified persons, but thereafter to “be undertaken in the reasonable vicinity of” those persons.

13. The matter then came back before me on 9 December 2015, on which occasion, for ex tempore reasons then delivered, I ordered that the father, for the first three weeks of the looming Christmas holidays, spend day time on Monday, Tuesday and Wednesday of the first three weeks with the children, but that for the last three weeks, he spend from 11:00am on Monday until 4:00pm on Tuesday with the children.  There was a requirement that his time, whether during the day or overnight, be supervised by one or both of the paternal grandparents at a specified address.

14. The matter came back before me again on 2 February 2016, when further interim consent orders were made, which saw the children spend time with the father each alternate weekend from after school on Friday, until before school on Monday, save that B would also spend Wednesday night with the father if she had ballet on that night.  Further, school holiday time was ordered, such that the children would spend time with the father on each holiday week from 11:00am Wednesday until 4:00pm on Saturday.  Such time was to “be in the attendance of and supported by one or more of the paternal grandparents.”

15. The matter then came before me again on 12 April 2016, when, as I have already discussed, consent orders were made which saw the father spend alternate weekend time (including overnights with all three children) and Wednesday night with B, and for him to also spend three nights per week with the children during school holidays.  Again that time was not to be strictly supervised by the paternal grandparents, but to “be in the reasonable vicinity of and supported by one or more of” them.

16. It can therefore be seen that, albeit with an unusually large number of court attendances, and on occasion without the orders being made by consent, in fact the parties have moved from the children spending brief periods of strictly supervised time with the father each fortnight, to them spending reasonably lengthy periods of time, including overnights with him, in a very loosely supervised format.

17. The father has continued to suffer psychiatric ill health.  It does not appear to be in dispute that he was last an in-patient in a psychiatric facility between 30 April 2016 and 27 May 2016.  Moreover, he has not returned at all to employment in 2016 as a health professional, and remains under psychiatric treatment.  That said, the mother conceded that since 27 May 2016 (ie for in excess of the last six months) the father has not demonstrated any florid episodes to her knowledge, and moreover, there has been no manifestation of any behaviour by the father of anything that could be constituted or interpreted as demonstrating that he poses a risk of sexual harm to the children.

SHOULD THE FATHER’S TIME MOVE TO UNSUPERVISED?

1. In my ex tempore reasons of 9 December 2015, I addressed the agreed or non-controversial facts, identified the major issues in dispute between the parties, and addressed the s 60CC considerations.

2. At paragraphs 8-13 I undertook an assessment of the risk which the father was said to pose to the children, as identified by Dr K, a psychiatrist who had examined him, who said that the father “has poor regulation of his boundaries, particularly in relation to sexual behaviour.”  However I noted that it was not said that the father was a sexual predator of children or indeed a sexual predator generally.  Further, I noted that even taking the risk identified by Dr K at its highest, any risk that the father might cross appropriate sexual boundaries with the children could then be substantially, and perhaps wholly, mitigated by having his time with the children monitored by another responsible adult.  That has, as it transpired, proven to be correct, in that no allegation of sexual impropriety by the father, in the presence of the children, whether by demonstrating lax boundaries around them or otherwise, has thereafter been made.

3. Central to the mother’s concerns is her assertion that in the past the father has only spasmodically complied with medication regimes that have been prescribed from time to time.  It was that which motivated her, during the course of submissions, to suggest that one means of ensuring that the father maintains compliance with his medication regime would be to require him to submit to blood tests which would show that he is continuing to take lithium based medications as presently prescribed for him.

4. In evidence before me was a letter from the father’s current consultant psychiatrist dated 5 December 2016.  Relevantly it records:

   It is my opinion that [Mr Costello] suffers from bipolar affective disorder type 2 which is currently relatively in remission.  He also suffers from generalised anxiety disorder… It is my understanding that he has been compliant with his current medication regime.  It is also my opinion that his mental state is the best that I have seen it since I started treating him in May 2015.  I attribute this to his compliance with lithium and its general settling effect upon his mental health.

   He continues to be troubled by anxiety but is generally trying to manage this the best he can.  He has engaged with .. psychologist, to assist with interventions with managing anxiety.  He sees me every month and has always been compliant with follow-up arrangements.  I understand that [Mr Costello] currently has supervised care of his three children.  I do not believe that there are currently any psychiatric contra-indications for him to be trialled with short periods of unsupervised care of his children.  Should this period of unsupervised care be successful, this could be increased as time goes on. 

5. It seems that the children have now settled into the routine of spending regular time with the father.  It also seems clear that they are obtaining benefit from that regular experience of their relationship with him.  It is likely that the father also is obtaining benefit from that, and one suspects that it also contributed to his recent periods of relatively stable and improved mental health.  That said, it has to be accepted that the father remains suffering from poor mental health.

6. Importantly in this respect I note Dr J’s assessment, accepting that it is now of little vintage, being dated 17 August 2015.  I should say that in addition to preparing a Family Report, Dr J, who has considerable experience in working with sex offenders, also undertook a sexual risk assessment of the father.  Having noted that the father had over-stepped accepted boundaries at work, he continued:

   289. It does appear his propensity to act in such an inappropriate manner may be directly linked to his mental health status in that, as his mental health situation deteriorates, he is more prone to act in such an impulsive, inappropriate and ill-advised manner.

   .. From my observations of [Mr Costello], my understanding of the epidemiology of sexual deviance, the origins of offending behaviour and the catalyst of such behaviour, in my view it is unlikely [Mr Costello] was acting in a manner derived from an aberrant sexual deviation.

   …

   294. In my view .. if [Mr Costello] were to address these issues, accept them as fact and importantly accept them as being something that needed to be changed, then such behaviours would cease and the risks would that then would attach would diminish accordingly.

   …

   296. Importantly the nexus between [Mr Costello’s] mental health circumstances and his propensity to act in an uninhibited and ill-considered manner is, in my view, clear.

   …

   306. In terms of the orders which would be proposed, in my view [Mr Costello] could recommence unsupervised contact with his daughters provided he has given the undertaking to deal with the issues raised above.

   …  

7. Dr J then went on to suggest that there should be a staged reintroduction of unsupervised time, so that the children were exposed to greater and greater periods of time, including unsupervised overnight time with the father.

8. Although not entirely consistent with that prescription, as has been seen, there has been a progressively staged reintroduction of the children into the father’s life.  Nothing that has occurred during that period of time speaks of him demonstrating that he poses a risk of any moment to the children, accepting that they may have seen him experiencing some form of breakdown prior to his hospitalisation in May of this year.

9. Given the father’s compliance with his medication regime and his psychiatrist’s recent and relatively optimistic view of the father’s current mental health, I am well satisfied that such concerns as relate to the father’s poor boundaries have now abated to the point where unsupervised time should be trialled.  Whilst I note his psychiatrist’s recommendation for “short periods,” in reality the children and the father have both settled into a routine of spending time together, and it has only been very loosely supervised in recent times.

10. However the matter should not be without safeguard.  I agree with the mother’s proposal that the father should be required to demonstrate on a fortnightly basis his ongoing compliance with his lithium medication regime, and further, that the trial of unsupervised time should be for a period of about three or four weeks, at the conclusion of which there should be a Child Inclusive Conference undertaken, so that the Court can have the benefit of a review of the success or otherwise of the trial of unsupervised time.  Further, the father agrees that in the event that he were to commence to experience what he believes to be a flare up in his anxiety or anger, that he is obliged to contact either the mother or the paternal grandparents.

1. Particularly the following, to my mind, justify the trial of a period of unsupervised time:

   ·The arrangements that have prevailed since December 2015, although not without some incident, have been substantially successful;

   ·From at least August 2015, the Family Report writer has supported the recommencement of unsupervised time;

   ·The father’s current treating psychiatrist recommends the trial of unsupervised time;

   ·The period of time which I propose to order is relatively short, but of sufficient duration to enable a substantial assessment of its success or otherwise;

   ·It is conditioned upon the father remaining compliant with his medication regime.

2. Recently, Murphy J, sitting as the Full Court, said as follows in Jopson & Lilwall [2016] FamCAFC at [56]:

   56. The notion that the judges of this court, or judges of the Federal Circuit Court, are not haunted by the prospect of erroneous assessments of risk is as offensive as it is false.  But assessments have to be made.  Best interests involve a balance.  Some assessments of risk are to be made after a trial and a careful assessment of the evidence.  But, some assessments of risk have to be made at interim hearings in the absence of the deliberations inherent in a trial.  If it were otherwise, there could never be an interim decision that did not default to the entire acceptance of a case that asserted risk.  Whilst like the medical adage, the court of course seeks to first do no harm, there is, as Fogarty J has remarked, always a risk and there are always concerns (see ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249).  The issue is the extent of the risk and the things that might be done reasonably to alleviate (note, not eliminate, but alleviate) the risk

3. In my view that perfectly captures what I am attempting to do in this case: to reasonably alleviate, but not eliminate, risk.

4. I have otherwise considered the s 60CC factors. As I noted in my 9 December 2015 reasons, this case really involves the weighing of the two primary considerations. As to that, I have already addressed the risk of harm to the children in spending unsupervised time with the father; on the other hand I remain confident that the children derive benefits from having a meaningful relationship with the father and enjoy spending time with him.

5. For these reasons I am satisfied that it is in the children’s best interests that there should be a trial of the father spending unsupervised time with the children and therefore will pronounce orders as set out at the commencement of these reasons.                 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 22 December 2016.

Associate: 

Date: 22 December 2016