Davenport & Foster
[2022] FedCFamC1F 245
•28 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davenport & Foster [2022] FedCFamC1F 245
File number(s): BRC 3425 of 2018 Judgment of: BAUMANN J Date of judgment: 28 March 2022 Catchwords: FAMILY LAW – PARENTING – Undefended Hearing – Where the mother has failed to engage in the proceedings – Final Orders made for the child to live with the father and for the father to have sole parental responsibility Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 28 March 2022 Place: Brisbane Counsel for the Applicant: Mr Tonge The Respondent: Litigant in person (did not participate) Independent Children’s Lawyer: Mr Dooley, Dooley Solicitors ORDERS
BRC 3425 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DAVENPORT
Applicant
AND: MS FOSTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 MARCH 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders be discharged.
Parental responsibility
2.That father shall have sole parental responsibility for the major long-term issues of the child, X born 2016 (“the child”).
3.That in the exercise of the father’s sole parental responsibility, the father shall:
(a)Inform the mother in writing (via email) about decisions to be made twenty one (21) days prior to making the decision, save in the case of an emergency and then such notice to be provided as soon as practicable;
(b)Seek a response from the mother in writing about the decision to be made;
(c)The mother shall have seven (7) days to respond to the father’s email correspondence;
(d)The father shall consider the mother’s response and keep in mind the best interest of the child as his paramount consideration; and
(e)The father shall inform the mother in writing as to the decision he has made.
Living arrangements
4.That the child lives with the father.
5.That the child spend time with the mother as may be agreed between the parents having regard to the report of Dr B, Psychiatrist filed 26 August 2020 and the Family Report of Dr C filed 14 July 2021.
6.That the father promptly inform the mother of any serious illness which befalls the child and any serious injury sustained by the child, and in that case the father shall provide the mother with the contact details of the child’s treating medical practitioner and shall authorise the child’s treating medical practitioner to provide information to the mother as the child’s treatment and prognosis.
7.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That the mother failed to appear before the Court today despite having notice of her appearance being required and consistent with earlier failures to comply with directions of the Court.
B.That the Court’s discretion to make final orders is shaped by the evidence of Dr B, and Dr C.
C.That if the mother seeks to set aside these Orders on the basis that they were made in her absence, any such application by the mother would need to be supported by an affidavit of the mother setting out:
(a)Reasons for her failure to comply with Orders of the Court, including failure to appear before the Court today;
(b)Reasons for the mother not having spent time with the child despite the Orders which permit her to do so;
(c)Steps taken by the mother to engage in psychiatric or therapeutic treatment as recommended by Dr B and supported by Dr C; and
(d)Details of what orders the Mother seeks and says would be in the best interests of the child if the Orders made today were set aside, and why.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davenport & Foster has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The subject child of these proceedings, X born in 2016 has recently turned six years of age and is the only child of a somewhat ambivalent relationship between the Applicant father, Mr Davenport, and the Respondent mother, Ms Foster, who, in their early 20s, commenced a relationship which ended in March 2017 when X was but 13 months of age. The history of this matter in the Court system has been problematic. To some degree, it may well be that the applications and inconsistency in parenting were shaped by drug use, to which both parties have clearly in the past had access.
Without dealing with all the events which took place, as this young couple sought to manage X’s best interests, it is, at least, relevant to note that with the benefit of a family report on 30 January 2020, Judge Middleton in the Federal Circuit Court of Australia (as it was then known) made a final Order that the child live with the father and that the mother’s time be supervised. Sadly, within months of that final Order, the mother, for reasons which are not totally clear, has failed to maintain any options for supervised time with X from August 2020. The evidence is, and I accept, that she maintained some FaceTime communication until August 2021.
When one seeks to understand what issues may have befallen this young woman, one only needs to look at the psychiatric report of Dr B filed 26 August 2020. Dr B’s psychiatric report is, in my view, properly and accurately summarised in the very detailed and considered submissions, which I have from Counsel and/or solicitor for the father at paragraphs 51 to 59, which I incorporate in this Judgment below:
51.[Dr B] notes “There are a number of serious issues of concern pertinent to the matters before the Court from a medical/psychiatric perspective”
52.[Dr B] notes that the mother reported confusion about possibly having been abused by her biological father and that “this history raises a serious concern about adversity in her child and adolescent experience which increases the risk of the development of psychiatric illness in life and which results in an altered experience of emotional and psychological development”.
53.[Dr B] notes -in relation to personal relationship issues reported by the mother “these experiences create concerns about her experience of personal relationship stressors and a lack of social support”.
54.[Dr B] notes that mother having reported “I cut myself with a knife” and that the mother has a history of punching herself in the head which resulted in her being admitted to a psychiatric ward. About that, [Dr B] opines “these examples of self-harm support the presence of acute episodes of severe self-loathing, in the context of life stressors, and are an extreme type of maladaptive stress response, resultant from the adverse effects of [a] to [e] on identity development and emotional regulation processes”.
55.[Dr B] notes “there is a profound syndrome of vagueness about [Ms Foster’s] mental functioning. It is as if she has a hearing problem… [Ms Foster] stated she “zoned out” during the examination. This state was obvious at interview, in that [Ms Foster] appeared to be distant and not listening to what was being said. This state appeared to start spontaneously and ended just as automatically. She appeared to have no control over the mental phenomena that underly this phenomenon”.
56.Under the heading “Function”, [Dr B] notes “testing including an EEG, an MRI brain scan and the review of a medical specialist Consultant Neurologist is required. There is a variable, unpredictable and serious increased risk of altered parenting functions from the “brain fog” mental experience, which requires medical specialist assessment and management”.
57.[Dr B] further notes:
“The diagnostic issues outlined above raise serious concerns about her social skills and functional ability to problem solve and cope emotionally and psychologically with the challenges of forming a working, functional post-separation parenting plan with the Father. The current concern for parenting dysfunction centres on recurrent “zoning out”, which is spontaneous, uncontrollable and unpredictable, and which creates episodes of loss of awareness of what The Child may be saying or doing at any particular time, risking harm to The Child from neglect of The Child’s needs.
A most serious increased risk of impairment of parenting function concerns a recurrence of illicit substance intoxication and/or withdrawal from the unpredictable and variable effects of substances on mental state functions.
An inability to control and manage coping mechanisms in times of relationship and life stress from altered personality functions, anxiety and depression, and potential side effects from a number of powerful psychotropic medications create a serious degree of increased risk of recurrent self-harm, like cutting herself or punching herself in the head.
This risk can be mitigated by compliance with medical and psychiatric treatment, and the permanent cessation of illicit substance use.
The challenge for [Ms Foster] is for her to be motivated to enter into a long-term psychiatric treatment plan to develop the social skills needed to cope with post-separation parenting issues in her life now, as she commences therapy to overcome the effects of the adversity which mark her life as outlined above in [a] to [g].”
58.[Dr B] otherwise sets out a number of recommendations for treatment for the mother.
59.Under the heading “Prognosis”, [Dr B] notes:
“The prognosis is guarded. It depends on the outcome of psychiatric treatment.
This issue could be reviewed after six-monthly intervals.
Given the nature and duration of the issues in her life, the prognosis needs to be monitored over at least a five-year plan of management.”
(Footnotes omitted)
Clearly the mother had some difficulties, and Dr B appropriately identified those and the fact that to deal with those issues the mother would need extensive and continuing psychiatric assistance. Sadly, it seems, the mother either has no insight into her difficult emotional persona or denies that she has any difficulties. This was reviewed, in a sense, by Dr C in a family report dated 24 June 2021 procured by the Independent Children’s Lawyer, Mr Dooley. I have read the report.
What is, I think, the most compelling part of the report, in many ways, is paragraph 12.67, which says:
In summary, it would seem that from all the information provided to the writer, since residing with his father, [X] has been living [in] an emotionally and physically safe environment, with a lifestyle that incorporates stable routines for [X]’s education and well-being. [Mr Davenport] has articulated he will continue to pursue further knowledge and strategies to develop his parenting knowledge and skills.
Children who have had the history of care that little X has had since his birth need stability. I am satisfied as best as I can on the evidence before me today, noting that the mother has been given the opportunity to appear but has failed to appear (further noting that she has earlier failed to comply with directions of the Court), that X is living in a stable environment at this stage with his father.
Not surprisingly, therefore, the report writer recommends that X continue to reside in the father’s care. It seems that he does have regular time with the paternal grandparents which, no doubt, provides some support to the father. The Court is not bound by a family report; it is part of the evidence that I need to consider. However, in the circumstances of this case, and noting the number of family reports which have been prepared previously in this matter, and the almost torturous process by which the matter came to this Court, I am satisfied it is in the best interests of X to make the orders which appear at the commencement of these Reasons and which are a combination of the father’s proposal and the Independent Children’s Lawyer’s proposal.
The mother was given an opportunity to appear today. She was, at least, aware of the proposal of the Independent Children’s Lawyer. She has not sought, as best as I can see, to appear by telephone, nor has she provided any explanation to the Court for her failure to be here today or, for that matter, to appear before the Court on the last occasion when the matter first came before me on 22 February 2022, after the matter had been transferred to Division 1 of the Federal Circuit and Family Court of Australia by Judge Middleton on 14 December 2021. It was indicated to Mr Tonge, who appears today as Counsel for the father, that the order having been made in the absence of the mother, means that the mother has a right to seek that it be set aside. However, that is a discretionary relief. To put my orders today into context, I ask that the following notation be included in the orders:
(a)The mother failed to appear before the Court today, despite having notice of today’s appearance being required, and consistent with earlier failures by the mother to comply with directions;
(b)The Court’s discretion to make final orders is shaped by the expert evidence by Dr B and Dr C;
(c)If the mother seeks to set this order aside because of her absence, any application to do so should be supported by an affidavit of the mother setting out:
(i)reasons for her failure to comply with the Orders of the Court, including the requirement to appear before the Court today; and
(ii)reasons why she has not spent time with the child despite Orders permitting that;
(iii)what steps she has taken to engage in therapeutic or psychiatric support as recommended by Dr B and supported by Dr C; and
(iv)details of the orders the mother says would be in the child’s best interests if the Orders made today were set aside, and why.
Otherwise, the orders which appear at the commencement of these Reasons are, at this time, in the best interest of X.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 June 2022
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