DOOLEY & SKELTON

[2015] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOOLEY & SKELTON [2015] FCCA 2195

Catchwords:
FAMILY LAW – Parenting – recovery orders application – prior court orders that children live with mother – court satisfied that mother’s depression and anxiety properly treated – no unacceptable risk to the children in being returned to the live with the mother.

Legislation:
Family Law Act 1975, ss.67U, 67V, 60CC

Applicant: MR DOOLEY

Respondent: MS SKELTON

File Number: PAC 5232 of 2013

Judgment of: Judge Newbrun

Hearing dates: 30 & 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Parramatta

Delivered on: 31 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Morrison

Solicitors for the Applicant: Mahony Family Lawyers

Counsel for the Respondent: Ms Webb

Solicitors for the Respondent: KJB Law

ORDERS

1. The Father shall return and deliver the children, [X], born [omitted] 2009, and [Y], born [omitted] 2011, to the mother at the McDonald’s Restaurant at [omitted] on Sunday, 2 August at 12 noon.

2. In the event that the Father fails to return and deliver the said children to the Mother in accordance with the previous Order, then, pursuant to section 67U of the Family Law Act 1975, a Recovery Order issue to the Marshal, the Deputy Marshal and all members of the Australian Federal Police and of all State and Territory Police Forces to recover the children and to deliver them to the Mother at [address omitted], New South Wales, and to include the powers under section 67Q subsection (b) and (c) and section 67S subclause (b).

3. The proceedings are adjourned for mention to 25 November 2015 at 9.30.  Note that, on the adjourned date of these proceedings, the Applicant Mother may wish to progress the balance of orders sought in her Initiating Application at least on an interim basis.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 5232 of 2013

MR DOOLEY

Applicant

And

MS SKELTON

Respondent

REASONS FOR JUDGMENT

1. In this matter of Skelton & Dooley the mother filed an initiating application on 1 June 2015, that was returnable on 30 July this year.  In that application, by way of interim or procedural orders, the mother sought, inter alia, orders that the children live with the mother; and the children spend time with the father on a certain basis.  The father filed a Response on 16 July 2015, in which he sought certain interim orders, including that the proceedings be transferred to Canberra Registry of this Court; the children live with the father;  the children spend time with the mother on a supervised basis, and sought other orders.

2. Yesterday, when the matter was first before the Court, the Court asked counsel for the mother, in light of the final consent orders made by the Court on 11 December 2013, which orders provided that the children live with the mother and spend time with the father – again, those orders having been made on a final basis – was not she, in reality, seeking a recovery order.  Ultimately, counsel for the mother sought the leave of the Court to make an oral application for an urgent recovery order – that is, that the children be forthwith returned from the father’s care to the mother.  That oral application was opposed by the solicitor for the father, in effect, on the basis that the father had had no prior notice that such an application might be made. 

3. Counsel for the mother submitted, in effect, that there was no prejudice to the father in relation to the oral application for an urgent recovery order, because the Initiating Application filed by the mother sought interim orders that the children live with the mother.  The Court further notes that in the mother’s affidavit, affirmed 29 May 2015, in paragraph 96, she sought that the matter be listed on short notice in circumstances where she was concerned that [X], one of the children of the relationship, was not attending school in the ACT, and that he would lose his current placement in a special class at [B] School.  In paragraph 97 of the affidavit of the mother she sought orders that the children live with her, and spend alternate weekend time with the father, similar to the arrangement that was operating until February 2015. 

4. The Court is satisfied that there is indeed, in the circumstances, no prejudice to the father, and the Court does grant leave to the mother to make an oral application for an urgent recovery order.  The Court will now proceed to determine the oral application for an urgent recovery order by the mother that the children be returned to live with her, noting the existence of previous final orders of the Court made on

   
   

   11 December 2013, that the children live with her. 

5. The relevant documents on this application that the Court has considered are as follows:  the mother’s affidavit affirmed

   
   

   29 May 2015; and the father’s affidavit affirmed 16 July 2015.  The Court has considered the following documentary exhibits on this urgent recovery order application:  Exhibit A, being certain tendered documents from documents produced on subpoena from Dr F, Exhibit B, being certain documents tendered from subpoenaed records produced by Ms W, Exhibit C, being certain documents tendered from documents produced under subpoena from Integrated Mental Health and Drug and Alcohol Services.  The documents tendered in each of exhibits A, B and C have been flagged by the parties’ legal representatives with yellow stickers, and orange stickers. 

6. Turning to the undisputed relevant facts on this application, the mother is aged 33.  The father is aged 30 years.  The children of the relationship are [X], date of birth [omitted] 2009.  He is now aged five;  [Y], born [omitted] 2011, presently aged four.  The cohabitation between the parties commenced on 22 January 2008.  They married on [omitted] 2009.  They separated on 1 October 2013.  The mother has been the primary carer, or caregiver, of the children since their birth, apart from about February this year to the present time, when the children have been in the care of the father. 

7. On 11 December 2013 final parenting orders by consent were made between the parties.  By reference to those orders, the Court made orders that the parents have equal shared parental responsibility for the said children;  the children live with the mother;  and that the children spend time with the father on a certain stipulated basis, and those orders refer to other ancillary matters. 

8. The parenting arrangements for the said children have historically largely followed those final parenting consent orders made on

   
   

   11 December 2013.  However, in February 2015 the mother became unwell with certain mental health issues, resulting in the children being retained by the father and thereafter living with him, up until the present time, in Canberra.  At that time, and prior thereto, for at least a reasonable period, the mother was living in Sydney. 

9. In September 2012 the child, [X], was diagnosed with autism.  During 2012 the mother had become concerned about [X]’s behavioural position, including his communication skills.  She expressed her concerns to the father, who initially thought she was paranoid.  The mother persisted in her concerns of [X], and by reason of her efforts, in September 2012 as stated, the child, [X], was diagnosed with autism.  The mother has been intimately involved with [X]’s therapy in relation to this diagnosis. 

10. The parties lived in [omitted], New South Wales previously.  In December 2012 the parties and the children moved to the ACT.  The mother has been a surrogate mother to friends.  She had an implantation of a fertilised human embryo on 23 December 2012.  The mother moved in June 2013 to her parents’ home in [M] in the Sydney metropolitan area.  On [date omitted] 2013 the mother’s surrogate child, [Z], was born.  Shortly thereafter the child, [Z], was handed to the mother’s friends to care for.  In late August, early September 2013, the mother travelled to the ACT to enable the child, [X], to attend autism therapy.  In October 2013 the parties separated.  The mother then moved with the children to [M].

11. In late November 2013 the father alleged that the mother had told him that she would drive a car off a cliff with the children.  The mother denies she ever stated this to the father, but, as a result of that alleged statement, according to the father, he withheld the children.  Then that led the mother to file an Initiating Application seeking a recovery order of the children, and on the first return date of her Initiating Application, being 11 December 2013, the father agreed to final orders, as a result of which the children were ordered to return to live with the mother. 

12. From the time of separation, in about October 2013, the mother continued to take the child, [X], to autism therapy sessions in the ACT. 

13. In February 2015, as stated, the mother experienced some mental health issues.  She spent about a week at the [omitted] Mental Health Unit in [omitted].  It appears the mother had had a history of prior anxiety and depression at certain times in her life.  The Court should refer to relevant evidence relating to those mental health problems and admission to that mental health unit and treatment thereafter, referred to in the evidence.

14. In annexure C to the mother’s affidavit of 29 May 2015, she has annexed a medical certificate from her treating GP, Dr F, dated 4 May 2015.  In that medical certificate, the doctor states, inter alia:

    (The mother) has been a patient of the practice since August 2013.  She has been diagnosed with anxiety, depression and has been placed on a GP Mental Health Care Plan.  She has been attending her counselling sessions with a psychologist,

    
    

    (Dr O,) participating in cognitive behavioural therapy as well as being compliant with her medication, Lexapro, 10 milligrams daily.

15. The medical certificate states that with these concurrent therapies, the mother’s mood and outlook have improved and, in the doctor’s opinion, he feels that she would, again, be capable of providing for her children’s needs and providing them a safe and stable environment. 

16. In annexure D to the mother’s affidavit, there is annexed a report from Ms W, psychologist, dated 8 May 2015.  That report states, inter alia, that the mother had two counselling sessions with Ms W on 31 March and 28 April 2015.  That was pursuant to a Medicare Mental Health Plan prepared by Dr J.  The report stated that the mother was referred for counselling for reactive depression and anxiety following an incident in February 2015.  The report states:

    (The mother) has experienced depression since the end of her marriage in 2013, which was exacerbated this year, by disappointments in her life and her ex-husband’s re-partnering.

17. The report states:

    (The mother) takes responsibility for her actions in February and has made efforts to stabilise her life and provide a secure home for her two children.  She is living with her parents in [M] and they have guaranteed her a home and support for herself and her children.  All her family are very supportive, particularly her sister and brother-in-law and are assisting her in re-establishing her life in Sydney.  (The mother) has arrangements in place to provide appropriate care for her children.  Her young son had been attending a special class and his place in the class remains available, so (the mother) would like him to return to this class as it provides for his specialised needs.  (The mother) is currently studying at TAFE and is considering further study to increase her career opportunities.  She has applied for a number of jobs and is hopeful of entering into the field of [omitted] for which she has qualifications. 

18. The report states:

    (The mother) presents as responsible and reliable and is committed to engaging in appropriate support to provide a stable and safe home for her children.  Though she has reported fluctuations in her mood, she says there have been improvements and she has been feeling better. 

19. The writer recommends that the mother continue to attend regular counselling to support her. 

20. In annexure E to the mother’s affidavit, there is annexed a report from clinical psychologist, Dr O.  That report is dated 7 May 2015.  It states, inter alia:

    This letter serves to confirm that the mother is currently under my treatment.  She has been referred by her general practitioner for follow up treatment after her discharge from the [omitted] Mental Health Unit at [omitted] Health Service. 

21. It states that she has seen the mother on 5 March 2015 for the first consultation when she presented with symptoms of depression and anxiety:

    The major stress factor underlying her condition has been the break-up of her marriage and subsequent turn of events that led to the children living with their father for the time being.  She attended four more sessions since.  A cognitive behavioural therapy approach has been utilised, as well as psychodynamic and mindfulness work.

22. The report states further that:

    (The mother) has used the therapeutic process very well to deal with the break-up of her marriage and the subsequent challenges she has been facing to rebuild her life. 

23. The writer states that she has seen a marked improvement in her condition and sense of well-being during the past months:

    All indications are that she is coming to grips with her separation and pending divorce and has built inner-resources and awareness to help her to deal with the challenges she is facing.

24. The report states, importantly, that in the psychologist’s opinion:

    (The mother) is ready to take care of her children’s needs and providing them with a safe and stable environment.  She is well-supported by family.

25. The report states the mother is committed to ongoing therapy:

    She needs ongoing support and therapy to reinforce new coping mechanisms and perspectives.  The therapy will continue to focus on developing inner-resources and awareness that enhance self-confidence and increase adaptive action. 

26. Further, in the affidavit of the mother, paragraph 79 to 81, inter alia the mother states or confirms her treatment since the February 2015 episode. She refers to continuing to participate in cognitive behavioural therapy as well as being compliant with her medication.  She refers to her attendances upon Ms W to discuss her disappointments that she felt as a result of the end of her marriage.  The mother finds that Ms W is able to assist her by talking through these issues and provides specific advice on mechanisms to deal with her feeling of disappointment.  She continues to attend upon her on a fortnightly basis.  

27. She refers to her attendance upon Dr O to discuss her management of stress and anxiety.  She feels that that doctor has a slightly different approach than Ms W and, therefore, she sees benefit in continuing to attend upon both.  She continues to attend upon Dr O on a fortnightly basis. 

28. The Court notes that the child, [X], commenced kindergarten initially at the [B] School in Sydney.  That child attended that kindergarten for the first three weeks of term 1 leading up to February 2015.  The child had settled in well at the start of term 1, 2015.  He had a place at that time in a class for students with autism.  It was a small class with only six students.  He was assisted in the small class by a teacher and teacher’s aide.

29. At paragraph 83 of her affidavit, the mother states that she understands that there is a current shortage of enrolment places for students with autism and she is concerned about [X] losing this spot by the change in parenting arrangements.  She is concerned that if [X] lost his enrolment place at [B] School, she would have to reapply to the Department of Education and go through a lengthy process.  She is concerned that if there are no spots available, he may have to attend school in a mainstream class or wait until 2016 to commence school in a school with appropriate resources to cater for his needs.

30. She states in paragraph 84 that [X]’s place at [B] School is currently being held for him.  However, it is at the discretion of the Department whether they will continue to hold the place for him.

31. On Mother’s Day 2015, the mother spent time with the children at her parents’ home in [M] and at the mother’s then residence.  The mother spent time with the children in the ACT on 22 March 2015 and also for eight hours on 21 May 2015.

32. The mother, in her affidavit at paragraph 87, in particular, refers to the children having been stressed and confused by moving between Sydney and the ACT.  The mother has stated this to the father since February 2015 when she has declined to spend time with the children.  The mother had told the father that it caused the children too much distress. 

33. In April and May 2015, [X] had Skype communication with the mother.  The mother is still living with her parents at their home at [M].  Their home has adequate accommodation for the mother and the two children.  The mother is not now in paid employment and is available to care for the children on a full-time basis.  It is noted that the father presently works as an airplane technician in the ACT. 

34. The mother has a lot of family support to assist her in relation to the children.  Again, the father’s occupation is stated to be [omitted].  He lives in the ACT, he has a new partner named [omitted] and the children have been living with himself and his new partner since February 2015.

35. It is noted that the father spent four months in the Middle East from two weeks after the child, [Y], was born.  Again, her date of birth was [omitted] 2011. 

36. The father commenced working in Canberra on 7 January 2013.  The father has spent time with the children since the final orders of the Court made on 11 December 2013 up until February 2015. 

37. Since February 2015 to date when the children have been in the care of the father, the children have gone to day care while he has been at work.  That is since 2 March 2015.  It is noted that the father refused to allow the mother to spend unsupervised time with the children on Saturday, 13 June 2015 when the mother came to the father’s home in Canberra.  It is noted that later the mother spent time with the children on 20 June 2015 for six hours with the father supervising. 

38. Since the child, [X], has been in the father’s care since February 2015, he has sought to deal with the child’s autism needs.  In late June 2015 he had a meeting with an officer from Autism Spectrum Australia to discuss that child’s therapy needs.  It is clear, however, that the father has experienced delays in finalising [X]’s autism therapy needs in Canberra, with the child [X] only starting weekly speech therapy sessions on 6 July 2015.  It is noted that [X] commenced kindergarten only on 23 July 2015 at [omitted] in the ACT.

39. In relation to the application for recovery order, the relevant law is set out in the Family Law Act. Section 67U of the Family Law Act provides:

    ...the court may, subject to section 67V, make such recovery order as it thinks proper.

40. Section 67V of the Act provides that:

    In deciding whether to make a recovery order in relation to a child, the court must regard the best interests of the child as the paramount consideration.

41. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of that section. The Court now turns to consider those considerations in section 60CC.

42. In terms of the meaningful relationship primary consideration, it is noted that the mother has been the primary caregiver of the children since their birth apart from the period from February 2015 to date, when the children have been in the primary care of the father.  The children, by inference, have a primary attachment to the mother.  It appears from the evidence before the Court that both parents have a meaningful relationship with the children.  The Court notes the final orders by consent of the Court on 11 December 2013, wherein the children were ordered to live with the mother and spend time with the father.  These orders reflect the reality that the mother has been the primary caregiver of these children since their birth apart from that period from February 2015 to date.

1. Should the children remain living with the father in Canberra, with the mother living in Sydney, there is a real risk that the children’s meaningful relationship with the mother will be jeopardised.  Should the Court order that the children be returned to live with the mother so that she can resume her role as the children’s primary caregiver, the father’s meaningful relationship with the children can be maintained by the resumption of the father spending regular time with the children in accordance with the past final orders of the Court on 11 December 2013.

2. Turning to the primary consideration of the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, the main issue ventilated by the father on this application is the alleged need to protect the children from abuse or neglect by reason of the mother’s alleged mental health problems.  It is suggested by the father in his evidence that there is an unacceptable risk to the children from remaining in the primary care of the mother by reason of her mental health problems.  The Court does not accept the father’s contentions in this respect.  The Court finds as follows.

3. On the evidence before the Court, there is no unacceptable risk to the children from being returned to the mother’s care and living with her.  True it is, the mother has a background history of anxiety and depression.  It is clear that in February 2015, she experience an episode of reactive depression and needed to be hospitalised for about a week.  At that time, the mother was suffering low moods in relation to her then life circumstances.  She was expressing suicidal thoughts but had no plans.  After about one week, the mother was discharged from hospital for her own follow‑up with her own treating doctors. 

4. Since discharge, the mother has acted responsibly.  She has sought psychological treatment, and the evidence of the mother’s general practitioner, psychologists, including Dr O, who saw the mother, at least, on five occasions, is that the mother is now able to take care of her children’s needs and provide them with a safe and stable environment.  The reports of her doctors and psychologists state the mother is committed to ongoing therapy.  Again, those reports state the mother is now able to take care of her children’s needs and provide them with a safe and stable environment.  The Court accepts their evidence.

5. The Court should make brief reference to exhibits A, B and C.  Looking at exhibit A, the Court notes in the transfer discharge summary that the mother was a voluntary patient to the [omitted] ward.  She was seen by a psychiatrist, social worker, psychologist.  She was not put on any regular medications.  Her mental state quickly settled.  She was euthymic.  No psychosis.  No major mood disorder.  Not suicidal.  Not homicidal.  She was discharged home, with community follow‑up.

6. Turning to exhibit B, the Court notes reference to the GP Mental Health Treatment plan dated 2 March 2015, which notes the mother was going through stress and anxiety, no suicidal ideation.  Turning to exhibit C, the Court notes the clinical notes of the [omitted] ward does refer to, on 23 February 2015 – that the mother was experiencing some suicidal ideation, which had increased over the previous two weeks. 

7. Again, looking at all the medical and other psychological reports, the Court has already referred to those reports.  Again, looking to the mother’s evidence of her compliance with treatment from those practitioners and her continuing treatment, again, the Court is amply satisfied that the mother has made a substantial recovery from her mental health issues experienced in February 2015 and, again, accepts the evidence of her treating health professionals that she is presently able to take care of her children’s needs and provide them in a safe and stable environment.  Again, the Court is satisfied, in all the circumstances, on the evidence before it, that there is no unacceptable risk to the children from being returned to live with the mother. 

8. It appears the children enjoy a caring relationship with extended family on both sides.  The mother has acted very responsibly towards the children between February 2015 and the present time in occasionally declining to spend time with them at the father’s request.  The mother so declined because she perceived the children were anxious and confused about the changed arrangements for their care since February 2015. 

9. The mother has always been acutely aware of the child [X]’s autism‑related needs.  The mother instigated initial inquiries regarding [X], leading up to his autism diagnosis.  The father, ultimately, became, in conjunction with the mother, attuned to the autism therapy needs of [X].  However, he did experience some delay between February 2015 and about June 2015 in obtaining regular and appropriate autism therapy for [X] in Canberra.

10. Should the children be returned to live with the mother in Sydney, they will experience some immediate change to their present routines.  The Court notes, however, that kindergarten has only just commenced for [X] in the ACT, as well as his therapy.  It is noted that the mother proposes to enrol [X] in a special program for him at the [B] School in [M].  It is noted that should the children be returned to the mother, they will live with her parents in ample accommodation. 

11. The Court notes that the children are aged five years and four years.  They should, in all probability, adjust quickly and beneficially in returning to their mother’s primary care, noting, again, that the mother has been the primary caregiver of the children all their life except the period since February 2015 to date.  The Court has previously indicated that the children’s meaningful relationship with the father should be maintained through the father continuing to spend time with the children on a regular basis pursuant to the past final orders of the Court made on 11 December 2013. 

12. In all the circumstances, as set out previously in these reasons, the Court is satisfied that it is in the best interests of the children that they be returned forthwith to live with their mother pursuant to the orders of the Court made on 11 December 2013.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date:  31 July 2015