Duckett and Duckett

[2019] FCCA 3464

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUCKETT & DUCKETT [2019] FCCA 3464

Catchwords:
FAMILY LAW – Parenting – interim hearing – 8yo child living week-about with parents  - mother has bipolar disorder and her time is conditional with her living with the maternal grandparents – father brings urgent application to suspend orders and for mother’s time to be supervised – father has evidence that mother’s mental health difficulties and associated risk-taking behaviours are more extensive and concerning than the court had been made aware of on the last occasion – evidence from mother’s treating practitioners is inconsistent – consideration of risks – mother’s time to be supervised – single expert report to be obtained to assist the court.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CC(2)(b), 60CC(2A)

Applicant: MS DUCKETT

Respondent: MR DUCKETT

File Number: NCC 832 of 2018

Judgment of: Judge Betts

Hearing date: 25 September 2019

Date of Last Submission: 25 September 2019

Delivered at: Wauchope

Delivered on: 27 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Graham

Solicitors for the Applicant: Tony Cox Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Byrnes Lawyers

ORDERS

1. Orders 2 and 4 of the orders of 28 March 2019 be suspended.

2. The child X born … 2011 (“the child”) is to live with the Father.

3. The child is to spend time with the Mother as agreed in writing between the parents and failing agreement at Interrelate City A at the frequency and duration that can be facilitated by Interrelate.

4. The parents are to urgently attend Interrelate for the purposes of completing all intake procedures.

5. The matter is adjourned to 11 November 2019 at 9.30am for Hearing Directions including possible trial directions.

6. The parties are to confer prior to the next Court date with a view to reaching an agreement for a single expert psychiatrist to prepare a report in relation to the Mother’s mental health condition and its impact on future parenting arrangements.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WAUCHOPE

NCC 832 of 2018

MS DUCKETT

Applicant

And

MR DUCKETT

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them easier to read.

Background:

1. This is an urgent application brought by Mr Duckett (“the father”) in relation to the child X, born … 2011 (“the child”).  The respondent to the application is the mother of the child, Ms Duckett (“the mother”). 

2. The parties are also embroiled in property litigation, but presently before me is an application by the father to substantially wind back the current interim parenting arrangements whereby the child X lives with the parents on a week-about basis pursuant to the orders of 28 March 2019. 

3. The matter came before me for hearing on 25 September 2019 at Wauchope, and I had the benefit of hearing comprehensive submissions from both Mr Byrnes, who appeared on behalf of the father, and from Mr Graham of counsel, who appeared on behalf of the mother.  Having considered submissions on that day, but not having had the opportunity to review the material as fully as I would like, the court made the decision to suspend the operation of the orders in relation to the mother’s time until further order.  This was on the basis of the risk factors identified by Mr Byrnes.  I did so on the basis that I intended to come back to the matter as quickly as I could. 

4. I have since had the opportunity to give the matter some further consideration.  I thank Mr Byrnes and Mr Graham for making themselves available at short notice today, which is of great assistance to the court, and also, in my view, to their respective clients. 

5. I propose to give brief reasons as permitted by section 69ZL of the Family Law Act.

Analysis:

1. This case has some difficulties about it. 

2. The mother suffers from a significant medical condition - bipolar disorder.  She manages the disorder, consulting with her treating general practitioner Dr B, her treating psychologist Dr C, and her treating psychiatrist Dr D.  It seems on all of the evidence before me that the mother is well aware of her need to maintain these professional and therapeutic relationships, and that she is taking the medication that is prescribed to her, and generally doing what she is supposed to do in order to manage her condition. 

3. Notwithstanding this however, matters have arisen in recent times that have caused Mr Byrnes’ client to file this urgent application. 

4. The father’s primary concern as set out in his affidavit of 10 September 2019 - and corroborated by exhibit “F1” to which I will turn shortly - is that the mother’s true mental health condition has been significantly less “transparent” than perhaps the court would have liked, and certainly the father would have liked. 

5. The difficulties arose from the father’s perspective following the mother deciding to give X an old mobile phone of hers in July of 2019.  By accessing the phone, the father was able to discover a number of matters which caused him grave concern about the welfare of the child, and grave concern about the mother’s capacity to properly manage her own behaviour, despite her treatment and her compliance with prescribed medication regimes. 

6. Before going further, I should observe that order 3 of the orders of 28 March 2019 specifically provided that although the child was to live week-about with the parents, that the mother was to attend her GP for consultations every three (3) months, she was to accept any recommendations from her GP, including attending other experts such as psychiatrists and psychologists.  She was to comply with recommendations from those experts.  She was to take any medication prescribed and at the correct dosage.  She was restrained from consuming alcohol and she was to reside with her parents. 

7. These were a fairly stringent set of orders made by the court following an interim hearing on 28 March 2019 at which - to be fair - the father had raised serious and significant issues concerning the mother’s mental health, and these were the orders that the court made.  The court made those orders against the backdrop of evidence provided by the mother at that time to the effect that her mental health was being properly managed. 

8. Annexure “E” to the mother’s affidavit of 14 March 2019 was a report from Dr D, psychiatrist, of 5 November 2018.  This relevantly stated that the mother had bipolar affective disorder, and that she had been a patient of City A Mental Health Service for several months.  To quote from the report:

   In that time, she has made significant progress with her mental health.  She is now stable and able to function at a very high level.  This is largely due to her commitment to the process of getting better and taking her medication fastidiously.

9. The report goes on, but I do not propose to further quote from it now. 

10. In short, the mother has complied with recommendations and has taken her prescribed medication – she cannot be criticised about that.  She has clearly done what she is meant to do.  However, it appears that on any version of events, the doctor’s statement as to the mother’s mental health, despite her compliance, has proven wildly optimistic and at odds with events that followed.

11. To return then to the father’s evidence, he deposes that the mother provided X with this particular mobile phone and that he saw on one occasion a picture of the mother naked from the waist up, exposing her breasts.  He says that this picture was only on the screen momentarily, but it was as a result of seeing this that he then asked X if he could look at her phone. 

12. The mother suggests that the father may have had the telephone “interrogated” (by inference from an expert) as she says that she had disconnected the internet from the phone, as well as deleting any inappropriate material that may have been on the phone.  She suggests that the father may have, in fact, been able to retrieve in some fashion through technological means information that she says was deleted.  That is very much a disputed fact in this case. 

13. Notably, the father became aware of the following message sent by the mother on 15 June 2019:

    LOL!  I had to delete last night because my daughter searches my phone.  Last thing I need her to discover!  Forgot to get rid of my titty shots until they accidentally popped up at me at netball.  Should have seen how quickly I deleted them like a ninja.

14. This message is obviously a matter of concern to the court. 

15. But perhaps of more concern are medical reports that the father has also found on the mother’s phone. 

16. One was a letter from her general practitioner dated 28 June 2019, which became exhibit “F1”.  Relevantly, that report states:

    Ms Duckett has had a longstanding diagnosis of bipolar affective disorder.  This continues to be difficult to get good control over.  She continues to have severe cyclical depressive episodes where she becomes socially reclusive and unable to answer the phone or leave the house.  At these times, she will not attempt basic self-care and has a persistent suicidal risk, thus she needs supervision of basic activities such as washing and dressing and showering, and requires supervision of her parents during these episodes.  These episodes last for about three weeks and are occurring less than every two months.  Full-time or part-time work would seem an unrealistic option on this basis, and casual work would be a difficult prospect, given the time she will be unable to function. 

17. The report also goes to say that the mother is on multiple medications and she is compliant with those and that she consults her psychiatrist, Dr D, and psychologist Dr C, “without being able to achieve better control than what we have presently.” 

18. That report is dated 28 June 2019, at a time when the child was living week-about with the mother pursuant to the court’s orders of 28 March 2019.

19. The mother’s psychologist Dr C also prepared a document around that date (being a “report” or a “supporting evidence form”), which made similar observations.  According to the father’s affidavit, which quotes Dr C’s document, it reads relevantly that:

    When in a depressive episode (these can occur for several weeks at a time with non-depressed periods of three weeks in between) Ms Duckett is not able to answer telephone calls or emails.  She is often non-communicative at these times and needs assistance to function.  During manic periods, Ms Duckett needs supervision of her social interactions to ensure her safety.  During periods of manic and hypomania, her behaviour can become inappropriate and risky, with high levels of impulsivity. 

20. The report goes on that:

    Her daily medications often need to be adjusted depending on her mood at the time, and that adjustments of dosage can cause her to experience memory loss and difficulty focusing and concentrating, and her medication can sometimes be sedating in effect, which impairs her cognitively…

    During depressed periods, she is often bedridden for days to weeks.  She needs reminders, prompts to shower, toilet, eat and change bed linen at these times.  She often has high levels of anxiety and suicidal thoughts at these times also.

21. These are dramatic pictures of the mother’s impaired mental health at a time when the court had been earlier assured on 28 March 2019 that her health was being managed and that the mother was able to provide a safe environment for the child - albeit ultimately the court ordered that this occur with the assistance of the maternal grandparents. 

22. Mr Graham for the father points out that these reports were addressed to the National Disabilities Insurance Scheme in support of an application made by the mother.  He submits that these reports perhaps paint a more dark picture than might otherwise be so, given the purpose for which they were intended.  There may be some force in that submission.  However, I do not consider that I can put those reports (and treatment) to one side - or regard them as anything other than a statement by those practitioners reflecting their genuinely held beliefs, albeit that they may perhaps have been looking more from a “negative” than a “positive” view.

23. The belief held by them at that time is consistent with the mother’s own behaviour in terms of her own sexual impulsivity at the time.  Her messages taken from the mobile phone reveal that around this time, she was engaging in sexual activities with strangers in a seemingly impulsive way. 

24. Now I do not pass judgment on the mother’s morality, and indeed in the modern world it is not impossible to hear references to “Tinder” and other applications that people access seemingly purely to have sex.  This is a matter for them.  But the concern I have is the mother’s own self-description, particularly in an exchange with a male person who she travelled to Sydney to have sex with on 20 June 2019, in which the following conversation occurs:

    Mother:  You love everything.  My kind of guy.

    Male person:  Anything sexual I love.

    Mother:  Same same.

    And this is the part I underline:

    Best side effect of bipolar highs is increased sex drive.  Fun, fun, fun.

25. The mother was herself acknowledging to a stranger that her own bipolar condition was not being well managed at all, entirely consistent with the medical reports referred to in the father’s affidavit (which were prepared around the same timeframe). 

26. The mother’s messages go on.  In that regard it is quite clear that on one occasion, either with the child in the same room (father’s case), or the child in the next room (mother’s case), the mother would seem to have been engaged in some sort of masturbatory telephone sex with this other person.  The messages were sent after midnight and refer to her being “still wet” and having, it seems, numerous orgasms. 

27. If the child was in the same room, one can hardly understate the risks attendant upon such behaviour, noting that the mother was in fact staying with her parents at this time.  But even if the child was in the next room, the level of behaviour referred to is certainly at the extreme end, and one does not have to imagine too hard that the child might wake up in the night, go to her mother’s room and stumble across something quite confronting and inappropriate.  And I do not suggest that that, in fact, happened.  I merely make the observation that it demonstrates disinhibited behaviour at a high level. 

28. I have to weigh that up against the backdrop that the mother’s parents act as supervising or supportive figures, for want of a better word.  But the mother positively set out to mislead them about going to Sydney on the weekend of 20 June to catch up with the stranger for what seems to be a casual sexual encounter.  According to the father’s evidence, the mother was actively misleading her parents, saying that she would have to figure out a lie to tell them, “because they will freak if I tell them I’m driving by myself to Sydney and staying at a stranger’s house to have hot sex all weekend long.” 

29. I do not criticise the mother at her age for necessarily wanting to keep private the fact that she is having sex with a third party.  She is an adult.  She does not have to answer to her parents. 

30. But the bigger point about this is that she has demonstrated a capacity and a willingness to bypass them and to be secretive when she knows her own symptoms are “flaring up”.  She has “gone with the highs” as it were, rather than being able to control her behaviour and to modify it appropriately. 

31. The messages I have quoted were, on the father’s case, accessible to the child on the mobile telephone, and I also have the mother’s admission in the texts that she had had to delete material so that the child did not see it. 

32. The Court is concerned about the mother’s mental state.  Certainly as at late June 2019, it would seem to have been highly dysfunctional and disinhibited in relation to the manic highs which she suffers from. 

33. Mr Graham refers me to the material that has been provided by the doctors subsequently, which is annexed to the mother’s affidavit. 

34. Annexure “A” to the mother’s affidavit is the GP report from Dr B of 18 September 2019.  It is an interesting report in that it is addressed “To whom it may concern” and it merely corroborates that the mother has been attending the practice, and it gives a list of dates that she attended and says she was compliant with her medicines.  And I should indicate that I accept that that is so, but what is noteworthy is that there is nothing in that report from the GP as to the state of the mother’s mental health at all. 

35. I turn then to the report of the mother’s psychologist Dr C of 17 September 2019, which is annexure “C” to the mother’s affidavit.  Therein, Dr C states that she is writing to Tony Cox (the mother’s solicitor) to inform him of her recent clinical findings regarding the mother’s mental health and functioning.  The letter says:

    Ms Duckett continues to be free of any significant suicide risk, as has been the case since 2017.

36. That statement is grossly inconsistent with the letter from the general practitioner provided (to the NDIS) just a couple of months earlier.  It is grossly inconsistent, in my view, with what Dr C had herself said just a couple of months earlier about the mother’s suicidal thoughts. 

37. The report in annexure “C” goes on to talk about the mother no longer suffering severe cyclical depressive episodes, and that the severity of her symptoms has decreased.  Dr C states that even when she has seen the mother during a “down” period, she has still been fully able to converse with her and has demonstrated good insight.  She goes as far as to suggest that the mother’s mood disorder has so improved in the couple of months since her report to the NDIS that the mother may now only be suffering “hypomanic” episodes rather than “manic” episodes.  That is, the mother may qualify for a possible diagnosis of bipolar II disorder rather than bipolar I disorder.  

38. I then have a report from the mother’s psychiatrist Dr D dated 19 September 2019, which is annexure “B” to the mother’s affidavit.  This refers to her bipolar illness being managed well for many years. 

39. I do not accept this for one moment. 

40. And the report states that the mother was seeking “a way of being even better able to manage her fluctuating mood”.  This I do accept. 

41. The psychiatrist goes on to say that although the mother’s mood swings remain, they are not nearly as crippling, and particularly since the mother had commenced on lithium carbonate on 6 June 2019 she has shown marked improvement. 

42. The report says that the mother is not suicidal and has not been for a long time.  It goes on to say that her ex-partner, being the father, has put her under great stress, which affects her greatly, but that she is resilient and has support.  The report says that she suffers mood cycles which are greatly improved and is able to function throughout the cycle.  Previously, she would be confined to bed for a week at a time, but this is no longer the case. 

43. Of course, the general practitioner tells me in June 2019 that the mother would be in bed (or at least incapacitated) for three weeks at a time.  That is a dramatically different picture. 

44. When I look back at what Dr D had said in November 2018 about the mother having made significant progress and now being stable and able to function at a very high level, I am left with a regrettable sense that I cannot rely on Dr D’s evidence.  I do not say that because Dr D is not qualified, but rather that in giving evidence Dr D also straddles the awkward position of being a treating clinician for somebody with a mental health issue. 

45. It seems to me that Dr D’s estimate or assessment of the mother was far too generous.  It also seems to me that the mother has an insidious condition that requires significant ongoing treatment.  I do not criticise her for this.  It is not her fault that she has this disorder.  And indeed, to be fair to her and to give her credit where it is due, it is not a case where she simply does not take the medication.  She does take it.  The problem is her condition varies.

1. Mr Graham makes the (with respect) good submission, one which is open to him on the evidence, which is - that given the mother has started taking lithium on 6 June 2019 with apparent improvement, that perhaps this is, for want of a better word, the “magic bullet” that is seeing an improvement in the mother’s condition.  Maybe it is.  Maybe it is not.  I am not willing to take the risk.  I am here at an interim hearing in circumstances where I have to put the child’s risk and safety concerns at the forefront.  The mother has, in my view, downplayed her mental health history.  The reports she has provided, I cannot rely upon at an interim hearing. 

2. The reality of the matter is that this case requires, in my view, an independent single expert assessment about the mother’s condition.  It may be – indeed I hope it is the case - that the lithium medication will result in a significant improvement to the mother’s condition.  It may already be doing so. 

3. The father through Mr Byrnes expresses the wish that the mother would recover and that she would be in a “better place” mentally.  But at this time, the court considers that it has to act protectively.

4. The child is well used to spending time with the mother.  Her relationship with the mother is strong.  They have a bond.  Her relationship with the maternal grandparents is no doubt strong as well.  But the maternal grandparents are not sufficiently protective, in my view.  I do not say that to be critical of them, but the reality is that on the evidence before me as to the mother’s behaviours in June 2019 and the material set out by the father in his affidavit to which I have referred, this child was at risk despite this court making its best endeavours on the evidence before it on 28 March 2019 to come up with a set of orders that were in the child’s best interests. 

5. The risks posed by the mother are multi-faceted.  Her sexual disinhibition on one view might be able to be managed by simply having the mother limited to daytime visits, and I did consider this, but the fundamental issue that is of even greater concern to the court is the risk of suicidality of the mother.  That is ultimately the clincher for me at an interim hearing. 

6. I have agonised over what to do, because I have contemplated putting in place orders for the child to spend daytime only with the grandparents present.  This may be a sufficient means of protecting the child in relation to the mother’s possible sexual disinhibition, but I am concerned that as with the “manic” periods where the mother is disinhibited - as she clearly was (and indeed refers to it as being, if you like, a beneficial side effect of her disorder) - there is also the other side effect (suicidality) which is in some ways, far more dangerous, potentially. 

7. I want to give the mother an opportunity for the drugs that she is on, the lithium, to take effect.  But I also accept the submission made by Mr Byrnes that whenever the matter comes back before the court, it seems to be that the picture painted by the mother’s treating doctors as to her mental health is more “rosy” than what it should be.  Certainly that has happened before.  In this regard I am not critical of the lawyers in any way.  They act on the evidence and the client’s instructions.  But the reality is that the mother’s evidence has to some extent painted a more positive picture than was warranted and on 28 March 2019 this court made orders on that basis. 

Section 60CC:

1. The Court considers that s 60CC(2)(b) is the primary consideration at this time. I am mindful of s 60CC(2A); s 60CC(2)(b) is not the only relevant consideration.

2. I am aware of and have considered all of the relevant s 60CC considerations. But at an interim hearing such as this, where I have a parent with, it seems to me, in recent times, significantly decompensated mental health, a risk of suicidality and seriously sexually disinhibited behaviour, and where I do not consider that the grandparents would be sufficiently protective, I consider that I have no choice but to accede to Mr Byrnes’ submission that the mother’s time should now revert back to supervised time at Interrelate in the short to medium term.

3. I am also fortified in that view by the evidence set out in the father’s affidavit to the effect that he has a recording of the maternal grandmother positively talking the mother out of going to seek treatment for her mental health at the hospital in March 2019.  If this is true, and I do not take it as an admitted fact, it would be evidence of an attempt to conceal symptoms rather than seek treatment for them. 

4. In any event, the mother has demonstrated a willingness and a desire to go around her parents for the purposes of sexual gratification, and the concern I have is that if she was in a bad way mentally, as she has been recently, then they may not be able to protect this child.  I cannot take that risk. 

Conclusion & orders:

1. Regrettably therefore, because it is a melancholy task to make orders such as what I propose to make, and I know this child loves her mother, and I have no doubt the mother will be devastated by what I am about to order, but nonetheless, their relationship is a strong one.  It will prevail and continue notwithstanding that I will be ordering that the mother spend supervised time with the child.

2. In relation to the supervised time, I put no limitation on that.  If Interrelate can provide supervised time for this family more than once a week, I have no difficulty with that, and I do not understand the father to have any difficulty either. 

3. I add here that in making an order that it be time as agreed in writing, the father through Mr Byrnes expresses that he does not seek to unduly restrict the mother’s time, and if, in fact, the mother’s condition stabilises and the father is satisfied that that is so, then it may well be that the arrangements can revert to something that represents more “normality” for the child than what the present order will.  But in the meantime, the present order in the court’s view is unavoidable. 

4. I also consider that this is a matter that requires a single expert psychiatric report as to the mother’s mental health and any associated issues about her parenting.  In some ways, the case would be more straightforward if the mother were someone who was recalcitrant and did not take medication, as so many people with mental illness are, who feel better and then decide to stop taking their medication and then spiral downhill again.  But this is not what the mother does; she takes her medication.  She is doing everything she can.  I accept that submission by Mr Graham. 

5. So what I would like to have and what I consider I need is a single expert comprehensive report to address the mother’s mental health condition.  I am not particularly interested at this time in another report from Dr D, Dr B or Dr C, all of whom no doubt have the best of intentions for their patient and are appropriately qualified, but the reality is, this Court needs something independent for the reasons that I have made clear, and it may be that an independent assessment will significantly light the way forward in this case.

6. In the circumstances the court makes the orders set out at the commencement of these Reasons

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 28 November 2019