Ennis and Ennis
[2017] FCCA 1775
•10 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENNIS & ENNIS | [2017] FCCA 1775 |
| Catchwords: FAMILY LAW – Interim parenting – where Father experiencing mental health issues. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MR ENNIS |
| Respondent: | MS ENNIS |
| File Number: | WOC 595 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 10 July 2017 |
| Date of Last Submission: | 28 July 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 10 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Johnson Horsley Lawyers |
| Counsel for the Respondent: | Ms Eldershaw |
| Solicitors for the Respondent: | KD Holmes Solicitors |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.
The Children live with the Mother.
The children communicate with the Father by telephone or facetime each Monday and Friday at 5:00pm and each Saturday and Sunday at 4:00pm (when they are not spending time with him) and at any other reasonable time as requested by the children.
The children spend time with the Father as follows:
(a)At all such times as agreed;
(b)For up to 3 consecutive days each calendar month, between the hours of 10.00am and 4.00pm as agreed between the parents or failing agreement on dates nominated by the Father on 14 days’ notice;
(c)The Father’s time with the children is conditional on:
(i)The Father not being under the influence of alcohol or any narcotic drug; and
(ii)The Father not experiencing any crisis in his mental health; and
(iii)The Father continuing to attend on his treating doctors and being medication compliant; and
(iv)The time taking place in the city or town where the children are residing; and
(v)The Mother (or her nominee) being reasonably satisfied at the time of changeover about the matters set out above.
The proceedings are transferred to the Federal Circuit Court, Brisbane Registry, to be listed for directions on 21 September 2017 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Ennis & Ennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 595 of 2017
| MR ENNIS |
Applicant
And
| MS ENNIS |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for Judgment explain the Interim Orders that the Court has made in relation to two children, X, born (omitted) 2010, who will be nearly seven by the time these reasons are published, and her sister, Y, born (omitted) 2012, five years old. This is a very sad case and it was difficult to decide. One of the biggest issues in this case is whether a risk of harm to the children is present as a result of their Father’s mental health. His mental health condition was caused by service in the (employer omitted), both in (country omitted) and (country omitted).
Background
The children’s Father is the Applicant in this case. He is 37 years old and describes himself as a retired (occupation omitted). He currently lives in the (omitted) district of New South Wales. The children’s Mother is the Respondent. She is nearly 35 years old and describes herself as a (occupation omitted). She lives in Queensland with the two children.
The parents’ commenced cohabitation in (omitted) 2009, married on (omitted) 2010, and separated in February 2017 (according to the Mother) or March 2017 (according to the Father). Nothing turns on their date of separation.
The child, X, has special needs associated with having been diagnosed with epilepsy and autism.
The Father appears to have been diagnosed with Post-Traumatic Stress Disorder, anxiety, and major depressive disorder in about 2012. The condition appears to have been relatively stable and certainly manageable from the perspective of this family until mid-2016. A series of mental health crises occurred, which will be discussed below, and the Father’s mental health appears to have declined. It is very difficult at this stage to identify why the Father’s mental health declined but a reasonable inference to be drawn from the aggregated information before the Court, even at an Interim hearing, is that the parents’ relationship may well have started deteriorating at this time.
What seems relatively uncontentious is that on (omitted) 2016 the Father attempted to hang himself in the garage of their property in Queensland. It was, fortunately, an unsuccessful attempt.
The parents’ had been living in Queensland between mid-2015 and December 2016. It seems reasonably clear that they moved back down to New South Wales, where they owned property, and where the Father’s family was located, so that he could obtain treatment for his declining medical health. The Mother took four months leave without pay in order to care for the children. It should be noted that she was, up until that time, working full time and, indeed, seems to have been the major breadwinner since 2012, when the Father’s diagnosis became clear.
In December 2016, the Father sought psychiatric treatment and was an inpatient at a number of psychiatric clinics and hospitals over the next few months. It is clear that during the period of the Father’s mental health treatment the relationship further deteriorated. The Mother says that they separated on 19 February 2017, but the Father says it was not until 17 March 2017.
The Father’s most recent mental health admission was at the (omitted) Hospital, and this appears to have been for several weeks during the month of March 2017.
An objective fact that is clear from the evidence of both parties, as well as the corroborating independent evidence that will be discussed below, is that the Mother returned to Queensland with the children early April 2017. The Father was aware of this. Indeed, the Father consented to this. An interim ADVO was obtained against the Father, by the Mother in early May 2017. The present proceedings commenced on 1 June 2017 when the Father brought the present application to the Court. The matter was listed for Interim Hearing on 10 July 2017. The Court gave to the Father the opportunity to provide more expert evidence in relation to his mental health. The report of his treating psychiatrist, Dr W, was filed on Friday, 21 July 2017. The parties were directed to make such further written submissions arising from this report as they wished, provided the submissions were filed by 4pm on 28 July 2017. Those submissions were taken into account in formulating these Reasons for Judgment.
The Competing Proposals
The Father’s proposal was, in effect, and by way of summary, that the children live with him in a rural area in (omitted) Sydney, and if the Mother decided to return to New South Wales, a shared care arrangement would be put in place so that the children live with each parent on a week about basis.
The Mother’s proposal was that the children continue to live with her, in Queensland, and spend time with their Father supervised, in Queensland. The Mother proposed, if orders were made, that the proceedings be transferred to the Brisbane Registry of this Court. The Mother also sought interim orders by way of property settlement that involved the sale of a property in (omitted) Sydney.
Whilst the primary focus of these reasons will be on parenting orders, there will be some discussion about the property aspect of this case below.
The Material Before The Court
The Father relied on the following affidavits in support of his application:
a)Affidavit of Mr Ennis filed 1 June 2017;
b)Affidavit – Non filing of FDR Certificate of Mr Ennis filed 1 June 2017;
c)Affidavit in reply of Mr Ennis filed 4 July 2017;
d)Affidavit of Mr C filed 5 July 2017; and
e)Affidavit of Dr W filed 21 July 2017.
The solicitor for the Father, Mr Horsley, provided a detailed case outline document together with a supplementary submission, both dated 10 July 2017 and further written submissions filed 21 July 2017.
In the Mother’s case, she relied on the following affidavit:
a)Affidavit of Ms Ennis filed 22 June 2017.
Ms Eldershaw of Counsel appeared on behalf of the Respondent Mother. There was a case outline document that had been filed on 5 July, as well as written submissions made 10 July 2017, together with further written submissions filed 28 July 2017.
The following documents were tendered in evidence:
| Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| A1 | A/F | Documents produced by Dr M |
| A2 | A/F | Documents produced by (omitted) Clinic |
| A3 | A/F | Documents produced by (omitted) Hospital |
| A4 | A/F | Documents produced by (omitted) Hospital |
| A5 | A/F | Documents produced by NSW Police pursuant to s69ZW |
| R1 | R/M | Documents from Dr G |
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) 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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
This is a case where it will be necessary to obtain independent expert evidence from a Court appointed psychiatrist. The nature and extent of the Father’s mental health issues, and their impact on the parenting issues before the Court, needs to be ascertained as soon as possible. Whilst there was actually an abundance of evidence before the Court that enabled it to form an impression of the Father’s mental health, and the impact that this might have on his parenting capacity, it is not a full picture. It is regrettable that such important and long term decisions need to be made about the children in circumstances where the evidence is both incomplete and untested.
One of the disconcerting uncertainties in this case is about the nature of the Father’s current relationship with his partner who he met during his most recent mental health admission. Very little is known about the Father’s partner, her family, or the nature of their relationship, other than it is a relatively new one. It was part of the Father’s case that X and Y would live with him as part of a wider family including his new partner and her children. The Father provides little to no evidence about this relationship. Indeed, in her psychiatric report, Dr W, tells the Court more about the Father’s relationship than he does. For example, Dr W explained that when she met the Father on 28 June 2017 he attended with his new partner, Ms K, with whom he has been living (together with her two children) since he was discharged from (omitted) Hospital late in March 2017. The Father told Dr W that Ms K is an (occupation omitted) who was herself diagnosed with Post-Traumatic Stress Disorder. It is of concern to the Court that the Father did not lead more evidence about this relationship, and the family dynamics in which he expected the children to live. What is clear is that his partner herself suffers, unfortunately, mental health issues relating to her former occupation as a (occupation omitted). This lack of evidence was a significant obstacle to the Court being able to accept the Father’s proposal in relation to the children.
It was also of concern to the Court that, at times, the Father’s case seems to have been presented as if the Mother had unilaterally relocated with the children from New South Wales to Queensland. This did not assist the Father’s case. The objective material before the Court suggests that this family lived, together, in Queensland between July 2015 and December 2016. Their life in Queensland appears to be relatively settled and happy. The children appear well settled in their environment. The purpose of coming to Sydney was for the Father to obtain treatment for his mental health condition, which deteriorated whilst they were all living in Queensland. Moreover, and as foreshadowed earlier in these Reasons, it is clear that the Father agreed to the Mother’s move back to Queensland, with the children, indeed on the basis that he would return to live up there with them.
The real focus of this case must be on the order that is in the best interests of the children, and the issue of where they lived in the past is but one of many factors that the Court must consider. The issue that is foremost in the Court’s mind, simply because of the evidence placed before it, is the Father’s mental health and the extent to which it impacts on his capacity to care for the children.
In this regard, the affidavit of Dr W, the Father’s treating psychiatrist is the most recent evidence. It is, with respect, an optimistic portrayal of the Father’s mental health and his capacity to care for the children. Dr W, a Consultant Psychiatrist, first met the Father on his admission to (omitted) Hospital on 2 March 2017. She accepts the prior diagnosis that had been made by a Dr M, the Father’s treating psychiatrist, that he suffered long standing psychiatric conditions going back to 2006 including major depressive disorder, Post-Traumatic Stress Disorder and generalised anxiety disorder. The purpose of his admission to (omitted) Hospital was to complete a group psychotherapy program to treat symptoms of major depression and major depressive disorder. She records that on admission the Father was experiencing nightmares, mood swings, anger, hypervigilance, tearfulness and poor concentration. He told Dr W that the trigger for the deterioration of his mood was due to serious relationship difficulties.
Dr W records that the Father told her on 6 March 2017 that he believed the Mother had moved out of the house, saying that: “I told her to go back to Queensland and go back to work…go up there and take the kids…if I want to pursue it, I will move back to Queensland…she’s pushing me further and further away.”
Dr W reports that during his stay the Father remained calm and appropriate, denied excessive anger or thoughts of harm towards himself or others and seemed to accept that his relationship was over. He participated fully in psychotherapy, was attentive and displayed understanding and insight to the content. On discharge from (omitted) Hospital, he continued to attend as an outpatient in their clinic and seemed to be compliant with therapy. She believed that he has remained mentally stable since his discharge.
Dr W’s last attendance on the Father was on 28 June 2017. On that date, the Father continued to have poor sleep, with moderate difficulty initiating sleep, middle of the night awakenings, intense dreams and occasional nightmares. He continues to get flashbacks, “a few times a week”. He has mild hypervigilance and avoidance symptoms. She opined: “…he continues to have mild to moderate symptoms of post-traumatic stress disorder but he is generally managing well.” She thought that his major depressive illness was currently under good control.
Dr W concludes as follows:-
“In my opinion, Mr Ennis has long standing psychiatric conditions of PTSD and major depression. I further opine that these conditions are currently stable on his current treatment regimen. He has been compliant at all times with his medication, psychological therapies and psychiatric reviews. He has been willing to comply with all suggested therapies. As Mr Ennis has had PTSD and major depression for many years, I opine that he will need ongoing psychiatric support to ensure he remains well. At this stage, he will likely need psychological support into the foreseeable future.”
In the penultimate paragraph of her report, Dr W makes the important observation that the Father had been a stay at home Father for a number of years, and there had never been concerns raised about his parenting at this time. This is an important observation, the significance of which will be discussed below.
The weight to be given to Dr W’s report is undermined, however, by a broader view of the Father’s mental health history. This broader view is available from an examination of the other material before the Court. The Court has a number of concerns.
The Court’s most significant concern is the history of the Father’s self-harm attempts and the absence of any reference to this in Dr W’s report. The Father concedes that there was one self-harm attempt on 18 December 2016. For present purposes, the Court is prepared to accept the Father’s account of this incident, which is contained at paragraph 23 of his affidavit filed 1 June 2017:
During a particularly dark period of my life I formed a strong suicidal ideation but when I heard Y’s voice in the background coming to find me I stopped myself. Ms Ennis and I had been arguing very regularly during that time and I felt that I could not go on. I had tied a noose and attempted to hang myself under the house. When I heard Y coming to find me I pulled myself up and took the noose off from around my neck. Y came in and told me that Ms Ennis wanted to see me. I told Y to go back up to the house which is when Ms Ennis came down to see me. I don’t recall much from this time but I recall that I did not want to talk to anybody and basically shut down and shut everybody out. After that time, Ms Ennis called a friend over and then my Doctor in Sydney. Ms Ennis then arranged for flights to be booked and we both flew to Sydney so that I could see Dr M who then admitted me to (omitted) Clinic in (omitted) on 20 December 2016.
The Mother’s account is found at paragraph 65 of her affidavit filed 22 June 2017:
I attempted to ring the husband on his mobile phone but it was switched off. I went outside and downstairs to the garage under the house. As I entered the garage I saw the husband slide off the boat with a noose around his neck. The other end of the rope was tied to the roof of the garage. I yelled:
“Mr Ennis”
The husband then grabbed at the boat with his feet to balance himself. He undid the noose from around his neck and sat on the edge of the boat. I said to the husband:
“What the fuck do you think you are doing? I’m here and the kids are here. Get back into the house right now.”’
The husband said to me:
“I can’t live with myself after what I have done to you.”
I rang a friend, Mr J (“Mr J”) who came to our house and sat with the husband while I packed his bags to travel to Sydney. The husband was crying uncontrollably while Mr J sat with him. I rang the husband’s psychiatrist in Sydney, Dr M, and said to him:
“I have just found Mr Ennis trying to hang himself in the garage downstairs. He needs to come and see you. I am very worried about him.”
Dr M scheduled an appointment for the husband to see him at his office in Sydney on 19 December 2016. Given the husband has not engaged a psychiatrist in Queensland, and given my grave concerns about his mental state, I felt that we had no option but to travel to Sydney for the husband’s treatment.
The Court is inclined to place greater weight on the Mother’s recollection of the incident, particularly since the Father himself admits that: “I don’t recall much from this time…” which, according to him, was the point at which the Mother came down to the garage underneath the house. Dr W says nothing about this self-harm attempt.
What is of concern to the Court is the possibility of other self-harm attempts which have not been referred to in the Father’s own evidence. The Court accepts Ms Eldershaw’s submission that a possible interpretation of the evidence of the Father’s own witness, Mr C, in his affidavit filed 5 July 2017 is that sometime in November 2016 the Father was contemplating hanging himself during a conversation with Mr C.
Moreover, when the Father was admitted to the (omitted) Clinic in Sydney it is clear that one of the issues was his excessive alcohol use. For example, the medical admission form from the (omitted) Clinic dated 20 December 2016 contains a reference to alcohol use disorder, six to 12 beers per day daily for the past 6/12. The absence of any reference to this in Dr W’s report is a further feature that undermines the weight that would be given to it.
The Father’s anger management issues also appear to be minimised by Dr W. There are three critical issues in this regard:
a)23 February 2017 when the Father was discharged from (omitted) Hospital,
b)24 February 2017 where the Father consulted a GP at (omitted) Medical Centre,
c)28 February 2017 when the Father saw his psychiatrist, Dr M, and
d)2 March 2017.
Even if the Court discounts what may have taken place on 24 February and 2 March 2017, (on the basis that these are allegations made by the Mother), the remaining events are of concern. It appears that the Father, for example, told Dr W whilst he was at (omitted) Hospital that he was asked to leave (omitted) Hospital due to, “a very inflammable situation”. On 28 February 2017, Dr M records: “Anger, screaming, suffering, expression of violence. PT slammed door and walked out of the room. Patient refuses to discuss quietly.” These outbursts of anger are concerns expressed by the Mother in her evidence, and, again, are inadequately dealt with by Dr W.
With respect to Dr W, there are clear issues in the Father’s mental health history that are either not addressed, or glossed over in her report. The same could be said about the Father’s evidence in relation to these matters.
It must be recognised, as indeed Dr W recognises, that this family has been living with the Father’s mental health issues for many years before the 2016 deterioration in his health. Indeed, even from the Mother’s own evidence, it is clear that the Father was the principal caregiver for these children when she was at work, which often involved extended periods of time away from the home. That does not detract from the Court’s concerns, however. Whatever the stability in the Father’s mental health was before 2016, it rapidly deteriorated. Indeed, it rapidly deteriorated during a time when he was receiving ongoing treatment from Dr M. The relationship breakdown with the Mother has obviously had a role in exacerbating the Father’s mental health condition. But whatever the causes of the exacerbation were, the Court must focus on the risk to the children of inconsistent stability in the Father’s mental health, or a further deterioration. These are real risks that the Court must somehow assess and manage.
The Section 60CC Considerations
But for the concerns about the Father’s mental health, there seems no doubt that these children enjoy a meaningful relationship with their Father. They also enjoy a meaningful relationship with their Mother – a matter not in dispute in this case. The challenges of distance make the continuation of this meaningful relationship somewhat problematic. On the Mother’s proposal, the Father would be spending time with the children in Queensland and on a supervised basis. She submits, and the Court is inclined to accept, that he has previously indicated that he will return to Queensland. The Court cannot rule this out. It is true that he has family support in New South Wales and he is in a new relationship. These are matters that need to be explored more closely at a final hearing. The financial circumstances of the parties suggest that there will be ample funds from a property settlement that could be used to fund travel to Queensland. The Court thus accepts that whilst maintaining a meaningful relationship will be difficult in a practical sense, it will certainly not be impossible. The challenges in this regard will be mitigated by the Mother’s proposal for the children to communicate with their Father by telephone or FaceTime several times a week.
The risk of harm considerations have predominated the Court’s consideration of this matter. They strongly suggest that, for the time being, these children should continue to live with their Mother, indeed where they are at the moment with her. To what extent, however, do the risk of harm considerations warrant making an order for supervised time, as the Mother proposes? The Court observes there is a big difference, from a risk assessment perspective, between the Father’s proposal that the children should live with him either fulltime or on an equal time basis, and the Mother’s proposal that the Father should only have supervised time in Queensland. The Court has assessed that the risk assessment exercise strongly contraindicates against the Father’s proposal, but does it justify the Mother’s proposal? It is not as if Dr W’s report provides no reassurance to the Court, it is just that it provides little reassurance in regards to the Father’s proposal. Whilst for the time being overnight time is contraindicated, at least until expert evidence is obtained, the Court believes that daytime contact in Queensland is a risk that can be satisfactorily managed by, for example, ensuring that the Father does not consume alcohol or is under the influence at the time of contact, and that the Father continues to engage with the mental health experts who are there to assist him, and is medication compliant. At changeover, in Queensland, the Mother will be able to monitor the Father’s behaviour, and demeanour. The Independent Children’s Lawyer will be able to monitor his ongoing mental health treatment. Overall, the Father should be able to spend daytime contact with the children in the town in which they live, between 10am and 4pm, even on up to three successive days initially. The Orders will reflect this.
The Order proposed by the Mother is the one that will bring about the least change in the lives of these children. For X, in particular, remaining in Queensland gives continuity to the special care that she needs. She will be in a familiar community and a school. Whilst it is true that, on the Father’s proposal, they would return to an environment that is not unfamiliar to them, the changes in their living arrangements would be substantial indeed, on his proposal. Those changes are not warranted.
As foreshadowed in these Reasons, there are issues of practical difficulty and expense associated with the Father spending time with the children. The Court has already concluded that these difficulties are not insurmountable.
There are issues about parenting capacity in this case, particularly in the Father’s case. These need to be investigated through appropriate expert evidence. The Court is not satisfied that there are any issues about the Mother’s parenting capacity – indeed, this is acknowledged by the Father himself in his proposal to the Court.
There are issues about family violence and anger management. The relevance of these issues has been foreshadowed in these reasons. The violence that the Mother alleges, and the anger management issues that are well recorded in the subpoenaed documents, are probably manifestations of the Father’s mental health issues.
Orders in The Best Interests of the Children
Having regard to the reasons stated above, the Court believes that the Mother’s proposal is much more closely aligned with the best interests of the children. The only point of difference between her proposal, and the orders that the Court will make, is that the Father’s time with the children in Queensland, provided it is in the same town as where the Mother and children are living, need not be supervised provided it is during the day. The Father’s time can be for up to three consecutive days. The Mother may well have some reservations about attending changeover herself. If this is the case, then she will be able to send a nominee.
The Mother did propose an order about the appointment of a psychiatrist as an expert. As the Court believes that, in the circumstances, it is more practicable to have this matter dealt with by the Federal Circuit Court in Brisbane, this is an Order that will be best left to the Judge who assumes the case management of this matter. That is not to say that the parties should not be giving earnest consideration to the prompt appointment of an expert and, indeed, this is a matter that the Independent Children’s Lawyer should facilitate.
Most of the other orders proposed by the Mother are uncontentious.
Property
The Mother sought orders in relation to the property owned by the parents in (omitted) Sydney. The Court is reluctant to get involved in this issue in circumstances where it believes that the Father’s capacity to comply with an order that gives him the opportunity to spend time with the children in Queensland several days each month may well be necessarily linked to property settlement issues, indeed interim property issues. The Court recognises that it has imposed on the Father a financial burden and that is a reason for not making property orders on an interim basis at this stage. Amongst other things, this Court would expect that he would need to gather evidence about the cost to him of implementing the spend time with arrangement proposed by these Orders. That may well be a significant consideration in any interim property order. Accordingly, this Court will not adjudicate on interim property issues and will leave it to a later date.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 10 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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