CRISP & CRISP
[2012] FMCAfam 556
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CRISP & CRISP | [2012] FMCAfam 556 |
| FAMILY LAW – Children – Parenting – Parenting Orders – Interim Orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether equal time with each parent in the child’s best interests – whether substantial and significant and sufficient time in the child’s best interests – attachment issues – mental health issues – Court Expert – appointment of Court Expert – child aged eleven months. PRACTICE & PROCEDURE – Rule 15.45 of the Family Law Rules 2004 does not apply in the Federal Magistrates Court. PRACTICE & PROCEDURE – Affidavits – where affidavits defective – jurat – failure of affidavit to indicate in the jurat whether affidavit sworn or affirmed – failure to comply with Rules. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65AA, 65DAA Family Law Rules 2004 Rule 15.45 Federal Magistrates Court Rules 2001 Rule 15.09, 15.26, Sch 3, Part 1 |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR CRISP |
| Respondent: | MS CRISP |
| File Number: | SYC 1212 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 May 2012 |
| Date of Last Submission: | 28 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney |
| Solicitors for the Applicant: | Newnhams |
| Solicitor for the Respondent: | Mr Cohen |
| Solicitors for the Respondent: | David H. Cohen & Co |
ORDERS UNTIL FURTHER ORDER
Orders 2, 3 and 4 made on 23 April 2012 are vacated.
Orders 1(a), (b) and (c) made on 28 May 2012 are vacated.
The Applicant Father MR CRISP and the Respondent Mother
MS CRISP by themselves their servants or their agents are restrained from removing or attempting to remove the child [X] born [in] 2011 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to prohibit either party from removing or attempting to remove the child from the Commonwealth of Australia.
The Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration and Citizenship are to take all necessary steps immediately to place the name of the child [X] born [in] 2011 on the Airport Watch List also known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police are to maintain an airport watch of the child on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child of the marriage [X] born [in] 2011.
The child [X] born [in] 2011 is to live with the Applicant Father.
The child [X] is to spend time with the Respondent Mother as follows:
(a)From 11:00am to 2:00pm each Monday, Wednesday, Friday and Saturday and such other times as may be agreed in writing by the parties;
(b)Time shall commence and conclude at [M] on Mondays, Wednesdays and Fridays and at [omitted], [D] on Saturdays or such other places agreed in writing between the parties; and
(c)All such time shall be supervised by a supervisor agreed between the parties and, failing agreement, by the child’s paternal grandfather.
As provided by Rule 15.09 Dr S is appointed as Court Expert to inquire into and report on the following matters:
(a)The nature of the relationship between the child [X], each of the child’s parents and any other significant people in the child’s life.
(b)The likely effect of any changes in the child’s circumstances including the likely effect of her being separated from either of her parents or any other person with whom she has been living.
(c)The capacity of each parent to provide for the child’s emotional, intellectual and other needs.
(d)The need to protect the child from any behaviour by any person which may cause physical or psychological harm to the child.
(e)The attitude to the responsibilities and duties of parenthood demonstrated by each of the child’s parents.
(f)Whether either of the child’s parents suffers from any psychological or psychiatric condition and if so the impact of that condition on the parenting capacity of that parent.
(g)The desirability and likely impact of each parent’s proposals as to living with and spending time with each parent including the desirability of making Orders least likely to lead to any further proceedings in relation to the child.
(h)Any other matters the Court Expert considers to be relevant.
The Applicant Father is to be responsible for the fees of the Court Expert in the first instance
IT IS NOTED that publication of this judgment under the pseudonym Crisp & Crisp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1212 of 2012
| MR CRISP |
Applicant
And
| MS CRISP |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders relating to a baby girl called [X], who is only nine months old. The Application is brought by the Father.
The Father seeks interim orders that the child should continue to live with him and spend supervised time with her mother, because of his concerns about the Mother’s mental health which affects her capacity to care for the child.
The Mother wishes to have the child live with her and spend time with the Father each Saturday.
Background
The parties commenced living together on a date in 2007. They were married [in] 2009.
There is one child of the marriage, [X], who was born [in] 2011.
The parties separated on 30th January 2012. They participated in a family dispute resolution conference on 27th February 2012.
On 2nd March 2012 the Father commenced proceedings in this Court by filing an Application and an Affidavit in Support.
On 23rd April 2012 the Court made Interim Orders:
a)The parties were ordered to attend a Child Dispute Conference with a Family Consultant.
b)The parties were restrained from removing the child [X] from the Commonwealth of Australia.
c)The name of the child [X] was placed on the Airport Watch List maintained by the Australian Federal Police.
The parties attended a Child Dispute Conference on 16th May 2012. The parties were able to agree on some activities with the child at which both parents were to attend.
On 28th May 2012 further Interim Orders were made, providing that the child should spend time with the Mother from 11:00am to 1:00pm each Monday, Wednesday and Saturday at [M] on Mondays and Wednesdays and at [omitted] at [D] on Saturdays. The Mother’s time with the child was to be supervised by an agreed supervisor and, in default of agreement, by the child’s paternal grandfather.
Orders Sought by the Parties
The Applicant Father seeks orders until further order:
a)that the child [X] live with him;
b)that [X] spend time with the Mother:
i)from 11:00am to 1:00pm each Monday, Wednesday and Saturday and such other times as may be agreed;
ii)time shall commence and conclude at [M] on Monday and Wednesday and at [omitted], [D] on Saturday, unless otherwise agreed; and
iii)such time to be supervised by a supervisor as agreed between the parties and, failing agreement, by [X]’s paternal grandparents or either of them.
c)That pursuant to Rule 15.45 of the Family Court Rules[1], and appropriately qualified child and family psychiatrist as agreed by the parties in writing be appointed to enquire into and report upon matters pertaining to the welfare of the child.
[1] This is incorrect
It should be noted that Rule 15.45 of the Family Law Rules 2004 does not apply in this Court. The appropriate rule is Rule 15.09 of this Court’s Rules, the Federal Magistrates Court Rules 2001. A list of those of the Family Law Rules 2004 that do apply in this Court can be found in Part 1 of Schedule 3 of the Federal Magistrates Court Rules.
The Respondent Mother seeks orders until further order that:
a)The parents should have equal shared parental responsibility for the child [X];
b)That [X] should live with the Mother;
c)The child would spend time with the Father each weekend from 10:00am on Saturday to 5:00pm on Sunday; and
d)The Father is to collect the child from the Mother’s residence at the commencement of his time with the child and return her to the Mother’s residence at the conclusion of his time with her.
Issues
The mental health of the Mother and her ability to care for the child are significant issues, according to the Father. The Mother puts that she has been the child’s primary caregiver until the end of January and the Father’s actions, as well as those of the Father’s mother, in keeping the child from her are having a negative effect on the child’s ability to form an attachment with her.
The Family Consultant, in her Memorandum to Court of 16 May 2012, noted some limited agreement between the parties but saw a number of issues remaining in dispute:
· Parental Responsibility
· Time [X] (10 months) should spend with both parents.
The Family Consultant reported that the Mother expressed feeling “controlled” by the father and his family, although the father claimed that he and his family had been supportive of her.
The Family Consulted raised concerns about the child’s attachment to her mother, noting that she had spent limited time with her since the parties separated in January. The Family Consultant stated that:
[X] will also have developed a significant attachment to her father from being in his primary care and this needs to be taken into account in any arrangement.
If there is considered to be no risk to [X] in her mother’s care, then [X] should begin spending time with her mother, including overnight, immediately. Any arrangement should prevent [X] from spending any significant length of time away from either parent, so short overnight periods of 2 or 3 days at a time are suggested in the interim.[2]
[2] Family Consultant Memorandum to Court 16.5.2012
The Family Consultant recommended that an Independent Children’s Lawyer should be appointed but the parties were less than enthusiastic about that recommendation.
Evidence and Submissions
The Father relied on the following affidavits:
a)His affidavit sworn (or affirmed) on 2nd March 2012;
b)His affidavit sworn or affirmed on 21st May 2012; and
c)The affidavit of his mother, Ms C, sworn on 13th April 2012.
I note that both of the affidavits of the Father are technically defective in that, as stated above, they do not state whether they are sworn or affirmed. Paragraph (ii) of sub rule 15.26(2)(a) states that:
The affidavit must:
(a) contain a jurat including:
(ii) whether the affidavit is sworn or affirmed…
As these are interim proceedings, I have decided not to reject the affidavits.
The Mother relies on the following affidavits:
a)Her affidavit sworn or affirmed[3] on 19th April 2012; and
b)The affidavit of Dr D, sworn on 15th May 2012.
[3] “affirmed” on page 1, “sworn” in the jurat on page 19
It is the Father’s evidence that, after the child was born, he noticed that the Mother was having “difficulties” caring for the child and did not want to be at home on her own with the child.[4] The Mother also had difficulty feeding [X] and the child was slow to put on weight.
[4] Affidavit of Mr Crisp 2 March 2012 at paragraph [16]
Eventually, in September 2011, the Mother spent a day at [T][5]. The Father attended for the first half hour and was advised about the advice that the Mother would be given and the techniques she would be shown in dealing with the child. However, the Mother told the Father later that she did not find the time at [T] helpful.
[5] It is a matter of general knowledge that [T] operates family care centres in several suburbs of Sydney to assist mothers of young babies in caring for them.
The parties placed the former matrimonial home on the market for sale and moved in with the Father’s parents for a period of about two and a half months. However, the Father states that the Mother spent a lot of time sleeping and experienced difficulty in coping with the child.
In late September 2011 the Mother went back to [T] and stayed there with the child for four days. The Father deposes that he would stay there overnight, at the mother’s request.
The Father claims that the Mother told him in November that she wished to return with [X] to live in her native Thailand. She also expressed doubts about wanting to continue their relationship.
On 18th November 2011 the Mother was voluntarily admitted to the [omitted] Hospital, where she was assessed by a psychiatrist and treated for depression. She remained there until Christmas Eve.
The Father deposed that the Mother said to him that she wanted to go to Thailand in February, against the advice of her psychiatrist.
The Mother reiterated her wish to return to Thailand. The Father observed that she was still having difficulty coping with the child, so he went back to work on a part time basis so that he could spend more time assisting the mother look after [X]. Eventually, he deposed:
The Respondent Mother gradually stopped taking responsibility for [X]’s care when I went back to work full time, and I found myself parenting [X] almost on my own.[6]
[6] Affidavit of Mr Crisp 2.3.2012 at [49]
The Father states that the Mother’s behaviour became more erratic by late January 2012; she insisted that she wished to return to Thailand and demanded a divorce.
The Mother commenced living at a relative’s house. The Mother was admitted to [omitted] Hospital on 1st February 2012 after an overdose of valium. She remained there until 7th February. After her release from hospital, the Mother went to stay with an aunt. The Father claimed that the Mother was most reluctant to spend time with the child.
The child continued to live with the Father, who cared for her with the assistance of his parents. The Father expressed concern about the Mother’s erratic and indecisive behaviour.
The Father deposed in his later affidavit that the child has continued to live with him. He is aware that the Mother has had treatment from various health professionals but says that she has not provided him with any information about her treatment.
The Father states that he has attempted to arrange regular times for the Mother to spend time with the child, but the Mother would only spend relatively short times with the child, for between half an hour and an hour and a half.
The affidavit of the paternal grandmother, Mrs C Senior, is largely corroborative of the Father’s affidavit evidence.
The Mother, in her affidavit of 19th April 2012, confirms that she was hospitalised from November to December 2011. She is currently taking Effexor XR, a medication prescribed for depression and anxiety disorders.
She claims that she is able to care for [X]. However, she claims that the Father has refused to return [X] to her care since 30thJanuary 2012, despite her numerous requests.
The Mother set out her difficulties living with the Father’s parents:
I found (the) living situation with Mr Crisp’s parents extremely difficult. [X] did not settle there very well and I felt I was in the middle of the relationship with Mr Crisp and Mr Crisp’s mother Ms C. She always liked to be in control and manage people including myself.[7]
[7] Affidavit of Ms Crisp 19.4.2012 at [15]
The Mother gives a different account of the circumstances of the parties’ separation. She states that she and the Father had an argument about finances and the Father said to her words to the effect of:
“You are sick, spending all that money! You are sick and you cannot care for the child.”[8]
[8] Ibid at [21]
She deposed that the Father refused to bring the child to see her on 31st January. She became distressed and took two valium tablets to calm herself down, but that was unsuccessful. She went on to state:
Around half an hour later, I took an additional 2 tablets, hoping to calm down. This made me feel more anxious again, so I took an additional number of 2 tablets, I cannot remember the number. I do not remember what happened after that.[9]
[9] Affidavit of Ms Crisp 19.4.2012 at [27]
The Mother was admitted to hospital. After her discharge she went to live with an aunt.
The Mother claims that:
Mr Crisp has only allowed me to spend time with [X] at his parents’ home. I have asked Mr Crisp a number of times for [X] to be returned to my care.[10]
[10] Ibid at [30]
It is the Mother’s evidence that over the course of the relationship the Father would order her around verbally. She claimed that he was controlling of her behaviour and would become angry if she watched Thai movies. She claimed that he controlled her income when she worked for him and restricted her access to finance.
The Mother proposed in her affidavit that she would live in the family home at [omitted], which is a 2 bedroom townhouse. She would live there with [X]. She states:
I am currently being treated for postnatal depression through medication and therapy. I will continue this treatment.[11]
[11] Ibid at [42]
The Mother denies many of the Father’s claims in his affidavits. She denies any intention to move back to Thailand:
I have no intention to (sic) returning to Thailand and live on a full time basis. I am a permanent residence (sic) of Australia and intend to take citizenship when I am able to do so. I am proud of my Thailand background and wish to associate with Thai people, Thai culture, use Thai language and custom, and also be able to teach these to my daughter [X].[12]
[12] Ibid at [94]
The Mother also relies on an affidavit of Dr D, a psychiatrist, who reports having seen the Mother on 18th November 2011. His report dated 20th April 2012 is annexed to his affidavit. Dr D reported that the Mother was admitted under his care to the Mother and Baby Unit at the [omitted] Hospital on 18th November 2011. He stated that:
Her mood was depressed, anxious, labile, poorly reactive and restricted. She was lethargic and anhedonic.[13] She reported insomnia with early morning waking, poor appetite, withdrawing, feelings of hopelessness, social isolation and a much reduced tolerance to frustration.[14]
[13] “Anhedonic” is derived from Anhedonia, which is defined as the loss of the capacity to experience pleasure, the inability to gain pleasure from normally pleasurable experiences.
[14] Affidavit of Dr D 15.5.2012 Annexure “A”
Dr D expressed the view that the Mother was well on the way to remission of postnatal depression on discharge. He stated that the Mother reported no intention to harm herself when she overdoes with valium. He said that he saw no evidence that the Mother was suffering from a bipolar mood disorder and said:
Since this episode Ms Crisp has made a complete recovery from her depression. She has complied with her treatment.[15]
[15] Ibid
In response to the question asked of him by the Mother’s solicitor, “Does Ms Crisp represent a risk in caring for her child, [X]?” Dr D stated:
No. Ms Crisp does not pose a risk to her daughter.
However, it is my opinion that her child is more at risk of long term psychological attachment problems as a result of interruptions to mother child bonding if the current restrictions to access to her mother are continued.[16]
[16] Ibid
Dr D also stated that the prognosis for the Mother is good if she is reunited with her child but the stress of continued of separation was likely to be detrimental to her psychological wellbeing.
Counsel for the Father, Mr Kearney, submitted that the Father was not seeking the appointment of an Independent Children’s Lawyer as the parties were both represented and the child is les than twelve months old.
There is a concern over the Mother’s lack of insight, as was shown by the orders sought in her Response that the child should live with her and spend weekends with the Father.
On the one hand, there is a need to continue regular supervised time between the Mother and the child in order to assist with the development of an attachment, as she has spent very little time with her mother since the parties separated at the end of January. On the other, it was submitted, there are still very real concerns about the Mother’s mental health.
The Father, Mr Kearney submitted, has shown that he has the capacity and willingness to care for the child, who has been living with him since the end of January. There is a need for the child to develop a primary attachment to her father.
It was further submitted that the Mother’s ability to care for the child was problematic, as she had had difficulties caring for the child since birth. The Mother had shown a lack of ability and commitment to the child and, since separation, has not sought to spend more than a small amount of time with the child.
Thus, the Father seeks orders that the child should remain living with him but that she should spend regular time with her mother in order to develop an attachment. However, this time needs to be supervised for the child’s safety.
The Father seeks an order that a child and family psychiatrist should be appointed as a single expert to provide a report to the Court at an early opportunity.
Mr Cohen, solicitor for the Mother, agreed that the Court should appoint a child and family psychiatrist as a single expert.
He told the Court that the Mother had been the child’s primary carer until 30th January 2012, when the parties separated. The Mother denies a suicidal ideation or that she suffers from a bipolar affective disorder.
The Mother proposes to live with her aunt in [omitted]. There will be a risk of long-term psychological damage to the child by being denied access to the Mother.
Mr Cohen raised the point that the Mother saw the Husband and his family as very controlling, especially her mother in law, although she has a better relationship with her father in law. It was unfair for the Father and his family to deny the Mother access to Thai food, Thai films and access to other Thai people. The Mother is Thai and should be able to have access to that part of her background.
Disturbingly, Mr Cohen told the Court that the Mother had not seen the child since 20th May, some eight days previously, and had not sought to do so.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, in deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration (see also section 65AA). A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
The primary considerations are set out in s.60CC(2):
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Under the recent amendments to the Family Law Act, there is now an added subsection 60CC(2A) which provides:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the child’s best interests (s.61DA(4)).
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s.61DA(3)). Section 61DB provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. Parental responsibility is considered afresh when the Court is making a final parenting order.
If the presumption of equal shared parental responsibility does apply, the Court is required by s.65DAA to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)) or, if it is not, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).
I have considered all of those matters.
Conclusions
The Father seeks an order for sole parental responsibility but the Mother seeks an order for equal shared parental responsibility. At this early stage, in the absence of an expert report, and without the ability to test the parties’ evidence by way of cross-examination, I am not satisfied that it would not be appropriate for the presumption to be applied when making interim parenting orders. Accordingly, I will make an order that the parties shall have equal shared parental responsibility for the child until further order.
There are conflicts between the affidavit evidence of the parties about important factual issues which the Court cannot decide in the circumstances of an interim hearing where the scope of the enquiry is “significantly curtailed” (see Goode v Goode[17] at [68]).
[17] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
This is certainly a case where the primary considerations in deciding where the best interests of the child lie are of significant importance. The benefit to the child of having a meaningful relationship with both of her parents is obvious. The concerns of the family consultant and
Dr D expressed in his report of the need for this baby girl to develop a strong attachment to both her father and her mother are, to my mind, very real. She is in a position where she is in the care of her father so it is to be expected that she is developing an attachment to him.
It must be asked, however, whether the amount of time she has been spending with her mother since January is sufficient to enable this child to develop an attachment to her mother. The uncontested evidence before the Court suggests that it is not. It is a matter of concern that the mother has not spent a great deal of time with [X], for whatever reason. It is surprising that between 20th May and 28th May, when the interim hearing took place, the Mother spent no time with the child, as a result of her own decision. This was put to the Court by Mr Cohen and it was not explained why the Mother took that position, notwithstanding the fact that the Father, in his Application, was asking the Court to make orders that the Mother should spend time with the child for three hours at a time on two occasions per week. It is perhaps understandable that the Mother was reluctant to spend that time at the paternal grandparents’ home, but it is hard to see why other arrangements could not have been made.
It was for that reason that I made an interim order on 28th May that the child should spend time with the Mother from 11:00am to 1:00pm on Mondays, Wednesdays and Saturdays, such time to be supervised. The aim was to re-start time between the Mother and the child so as no more time would elapse before the child could see her mother. The risk of losing what degree of attachment still existed seemed to me to be too great. Even so, considering what has been said by the family consultant and Dr D, the amount if time that was ordered seemed to be the bare minimum to preserve the attachment.
Against this, the Court must consider the need to protect the child from physical harm, if not from violence as such, but from neglect or abuse. There are serious concerns about the Mother’s parenting capacity which her own evidence to date has not been sufficient to dispel. In my view, protecting the child from harm in the light of what evidence there is before the Court must be given greater weight. This is the case whether or not s.60CC(2A) applies or not.
I have, as I said, considered the relevant aspects of the additional considerations in s.60CC(3). Clearly, this child is far too young for her views to be sought or taken into account.
It is for these reasons that I propose to make orders increasing the frequency of the time that the Mother spends with the child until the Court has further and better information. However, I am not satisfied that it is presently in the child’s best interests to spend equal time with each parent. For the time being, the child’s stability and safety dictate that she should live with her father and spend time with her mother, but, as I indicated, more time than before. That said, I am not satisfied at this stage that substantial and significant time as defined by s.65DAA(3) is in the child’s best interests at this stage. This can be reviewed as more evidence, including expert evidence, becomes available.
There is a need for a single expert report to be prepared and I propose to make such an order. The Mother’s solicitor has indicated his client’s consent. The Father’s counsel told the Court that the Father will meet the costs of the single expert in the first instance.
I have been informed that Dr S, a psychiatrist with experience in child and adolescent mental health, is reasonably available to prepare such a report and I propose to make an order appointing her a single expert.
I have previously ordered that the parties are restrained from removing the child from Australia and that the child’s name be placed on the Airport Watch List maintained by the Australian Federal Police. Notwithstanding the Mother’s statements that she has no intention of removing the child from Australia permanently, I propose to leave those orders in place until further order. However, they will be incorporated into these orders, so the parties will only have to refer to one set of Court Orders to consider.
The Interim Orders made on 28th May 2012 will be vacated and replaced by orders increasing the time the Mother spends with the child from two hours to three and increasing the frequency from three occasions each week to four occasions. If those arrangements go smoothly, the amount of time the child spends with the Mother can be increased, both in frequency and duration.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 12 June 2012