Farnsworth and Latta
[2011] FMCAfam 1492
•22 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARNSWORTH & LATTA | [2011] FMCAfam 1492 |
| FAMILY LAW – Children – parenting – interim orders – best interests of the child – mental health issues – whether mother’s time spent with the child should be supervised – parental responsibility – equal shared parental responsibility – whether equal time with each parent in child’s best interests – whether substantial and significant time with each parent in child’s best interests. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| In the Marriage of Bieganski (1993) 16 Fam LR 353 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 M v M (1988) 12 Fam LR 606; FLC 91-979 Mallahan & Mallahan [2010] FamCA 631 |
| Applicant: | MR FARNSWORTH |
| Respondent: | MS LATTA |
| File Number: | SYC 5255 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 December 2011 |
| Date of Last Submission: | 19 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Atalla |
| Solicitors for the Applicant: | Antwan Lawyers |
| Solicitor for the First Respondent: | Ms Smith |
| Solicitors for the First Respondent: | Legal Aid NSW |
| Independent Children’s Lawyer: | Mr Cumming |
| Solicitors for the Independent Children’s Lawyer: | Hamish Cumming Family Lawyers |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2001.
The Father is to have sole parental responsibility for making decisions about the day to day care welfare and development of the child during the time when she is in his care.
The Mother is to have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during the time when she is in the Mother’s care.
The child X is to live with the Father.
The child X is to spend time with the Mother:
(a)From 9:00am to 5:00pm on the second Sunday of each month commencing on Sunday 8 January 2012; and
(b)From 9:00am on Tuesday 17 January to 5:00pm on Friday 20 January 2012.
The Mother’s time with the child X in accordance with Order 6 above is to be supervised by the maternal grandparents Mrs Latta and Mr Latta or either of them or by the Mother’s brother.
The Mother’s time with the child is conditional upon the Mother’s compliance with any Community Treatment Order placed upon her under the provisions of the Mental Health Act 2007 (NSW) or any treatment plan and to this end the mother must forthwith authorise the (omitted) and any other medical practitioner or provider upon whom she may attend for the purposes of her mental health to advise the Father should he so request of her compliance or non-compliance with her treatment.
The Father must forthwith authorise any school which X shall attend to provide to the Mother at her expense copies of any school reports, assessments, newsletters, information about school photographs and any other documents usually provided to parents of children attending that school.
The Applicant Father and the Respondent Mother are to attend upon a Family Consultant at such time and place as they may be advised for the purpose of interviews for the preparation of a Family Report under the provisions of s.62G of the Family Law Act 1975 about matters relating to the care, welfare and development of the child X.
AND THE COURT NOTES THAT
The Application is listed for final hearing from 9 to 11 October 2012.
IT IS NOTED that publication of this judgment under the pseudonym Farmsworth & Latta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5255 of 2010
| MR FARNSWORTH |
Applicant
And
| MS LATTA |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the father of a little girl called X, who is ten years old. X was born on (omitted) 2001. She currently lives with her father.
The Respondent is X’s mother. Like the Father, she seeks interim parenting orders so that she may spend more time with X in the time leading up to the final hearing, which is scheduled to commence on Tuesday 9th October 2012.
An order was made on 10th February 2011 that X’s interests should be independently represented.
Areas of Agreement
The parties agree that they should have equal shared parental responsibility for X. They also agree that until further order X should live with her father and spend time with her mother.
They do not agree about:
a)the amount of time X should spend with her mother; and
b)whether or not the Mother’s time with the child should be supervised.
Issues
The Father is of the view that, initially, for a period of twelve weeks, the child should spend one day a month with the Mother, with overnight time to commence after that, first one night and then two nights.
The Father also seeks an order that the Mother’s time with X should be supervised with by the Mother’s parents, Mrs Latta and Mr Latta, because of his concerns about the Mother’s mental health.
The Mother seeks orders for block time with X at her home in (omitted), near (omitted), New South Wales, initially for periods of one week and then for half of each school holiday period. She also wants to spend one Sunday a month with her daughter.
The Mother does not accept that there is a need for her time with X to be supervised, although she concedes that her mental health is an issue.
Orders Sought
The interim orders sought by the Father are set out in his Amended Initiating Application filed on 16th December 2011.
In brief, the Father seeks orders that:
a)the child should initially spend from 10:00am to 6:00pm each alternate Sunday with her mother;
b)this would then increase to include overnight time on alternate Saturdays until Sunday morning for eight weeks, increasing to a concluding time of 5:00pm on Sunday; and
c)a further increase, to allow for overnight time on alternate Fridays as well as the Saturday night until 5:00pm on Sunday.
Order 5 in the Father’s Application is confusing, in that proposed orders 5(c) and 5(d) are identical:
For the following 8 weeks each alternate Saturday from 9am until Sunday at 5pm.
This was feature was not canvassed at the hearing, but it is more likely to be a clerical error than an intention that the orders should continue in that form for a total of sixteen weeks. I note, however, that proposed Orders 5(c) and 5(d) in Annexure “A” to the Application, dealing with final orders, are also identical. This may need to be clarified before the final hearing.
The Father seeks that all of the Mother’s time with the children should be supervised by the mother’s parents, Mrs Latta and Mr Latta.
The Father also seeks that the Mother’s time with the children should be conditional upon her continued compliance with any Community Treatment Order under the Mental Health Act 2007 (NSW) to which she may be subject.
The Father also seeks uncontroversial orders about:
a)keeping each other informed about their current addresses and telephone numbers;
b)refraining from making critical or derogatory remarks about each other;
c)keeping each other informed about:
i)Medical problems or illnesses;
ii)Prescribed medication for the child;
iii)Specialist medical appointments;
iv)Social, school or religious functions; and
v)Other matters relevant to the child’s welfare and development.
d)The Father seeks an order about the child’s right to have telephone communication with each parent.
The Mother, in her Response filed on 17th November 2011, seeks orders that:
a)X should live with her for:
i)One week commencing on 27th December 2011;
ii)One week commencing on 16th January 2012;
iii)From 9:00am to 5:00pm on the second Sunday of each month during the school term;
iv)For half of each of the school holidays in 2012; and
v)Telephone or Skype communication between 7:00pm and 8:00pm each evening.
The Mother also agrees to an order that her time with the child should be conditional upon her compliance of her current Community Treatment Order and she agrees to authorise the (omitted) health Team to advise the Father about her condition should he so request.
Background
The Father was born on (omitted) 1983. He is currently 26 years old.
The Mother was born on (omitted) 1972. She is 39 years old.
The parties commenced their relationship in late 2000. The child X was born on (omitted) 2001.
The parties ended and resumed their relationship on several occasions. They finally terminated their relationship in about September or October 2008 (mother’s account)[1] or early 2009 (father’s account)[2].
[1] Affidavit of Ms Latta 14.11.2011 at paragraph [2]
[2] Affidavit of Mr Farnsworth 15.12.2011 at paragraphs [33]-[34]
X lived with the Mother until 15th July 2010, when the Mother was admitted to the psychiatric ward of (omitted). She has remained in the Father’s care ever since.
The Mother has had mental health difficulties since she was a teenager, and was first placed on a Community Treatment Order when she was aged twenty. She has been the subject of a number of Community Treatment Orders since then. She is currently under the care of Dr N, a Consultant Psychiatrist employed by the (omitted) Service.
The Mother has been living at (omitted), which is situated inland from (omitted) in New South Wales, since 2009.
Submissions
The Independent Children’s Lawyer, Mr Cumming, submitted that the real issue was the Mother’s mental health. He expressed great concern in relation to the material filed by the Mother, particularly as to her lack of disclosure of her current mental health condition and her recent admissions to hospital. There have been four admissions to hospital which have not been disclosed, the most recent being on 25th September 2011.
Mr Cumming submitted that the Mother had a tendency to “gloss over” her hospital admissions and gave a “rosy” account of her situation, which was not supported by the subpoenaed material.
The Independent Children’s Lawyer did not support unsupervised contact between the Mother and the child. He was also critical of the Mother’s failure to provided updated medical reports.
The Independent Children’s Lawyer had obtained a grant of $3,000.00 from Legal Aid NSW to obtain a psychiatric report, but this would not be sufficient to obtain a full report from a recognised expert psychiatrist.
Ms Smith, who appeared for the Mother, told the Court that efforts had been made to obtain a fresh report from Dr N., but the need to provide a fee of $385.00 had resulted in the updated report not being available in time. The most recent report from Dr N., annexed to the Mother’s affidavit of 14th November 2011, dates from 21st March.
Ms Smith submitted that the Mother had either had equal shared care of the child or had been the child’s primary carer for the first ten years of the child’s life. She did not seek that the child should live with her but sought to spend more time with her. There was no evidence that the Mother had ever physically harmed the child.
The Mother is currently on a Community Treatment Order and still meeting the needs of the child.
For the Applicant Father, Ms Atalla submitted that there was a need for supervision of the Mother’s time with the child for her safety. The maternal grandparents, Mr and Mrs Latta, with whom the Father has a cordial relationship, are available to act as supervisors during the day. The Mother’s brother is currently back in Australia, having lived overseas, and would be able to assist with supervision.
Ms Atalla told the Court that the maternal grandparents would be available to supervise the Mother’s time with the child on one Sunday a month and for the following block periods:
a)21st to 23rd December 2011; and
b)17th to 20th January 2012.
The Relevant Law
When a Court is deciding whether to make a particular parenting order in relation to a child:
a)It must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA);
b)It determines what it is in a child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3); and
c)It 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, unless inapplicable because of abuse or family violence or rebutted where it would not be in the child’s best interests (s.61DA; see also Goode & Goode[3]).
[3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When a Court makes a parenting order that provides that a child’s parents are to have equal shared parental responsibility, it must consider whether the child spending equal time with each parent is:
a)in the best interests of the child; and
b)reasonably practicable (s.65DAA(1)).
If the Court does not make an order for the child to spend equal time with each parent, it must consider whether the child spending substantial and significant time with each parent is:
a)in the best interests of the child; and
b)reasonably practicable (s.65DAA(2)).
The Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time (see Mallahan & Mallahan[4] at [38]-[39]).
[4] [2010] FamCA 631
The Father seeks an order that the Mother’s time with the child should be supervised, and the Independent Children’s Lawyer agrees. Supervision of a child’s time with a parent is appropriate where unsupervised time would expose the child to an unacceptable risk of abuse (M v M[5]; In the Marriage of Bieganski[6]).
[5] (1988) 12 Fam LR 606; FLC 91-979
[6] (1993) 16 Fam LR 353
Conclusions
In this case, there is agreement between the parties that they should have equal shared parental responsibility for X, so an order will be made accordingly.
Neither party, however, is seeking an order that the child should spend equal time with each of her parents. Nevertheless, the Court must still consider whether it would be both in the child’s best interests and reasonably practicable to make such an order. I am not satisfied that it would be either in the child’s best interests or reasonably practicable to make such an order. The parties live a considerable distance apart, as the Father lives in Sydney and the Mother lives in a country area north of Sydney. The concerns over the Mother’s mental health at this stage also raise doubt as to whether such an order would be in the child’s best interests at this stage.
Similarly, whilst the Mother is seeking an order close to substantial and significant time, I doubt that it would be reasonably practicable, due to the distance between the residences of the two parents.
In the circumstances, the Court will not make an order for substantial and significant time.
The best interests of the child remain the paramount consideration.
The Court must have regard to the primary consideration of the benefit to the child of having a meaningful relationship with both parents (see paragraph 60CC(2)(a) of the Act). X has spent time with both parents, usually separately, throughout her life. She spent the bulk of her younger years in the care of her mother. She is currently in the care of her father. I am satisfied that it is of benefit to this child to continue to have a meaningful relationship with both of her parents.
The Court must also have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)). The Mother’s mental health remains a significant issue. Dr N.’s report of 21st March 2011, annexed to the Mother’s affidavit of 14th November 2011, refers to the Mother having a diagnosis of schizophrenia from the age of 20 years and difficulty adhering to medication, having only limited insight in to the fact that she has a mental illness”.[7]
[7] Affidavit of Ms Latta 14.11.2011 Annexure “A”
The Father, in his affidavit of 15th December 2011, has described various instances of bizarre behaviour or suicidal ideation by the Mother whilst X has been in her care. This has led to intervention by the NSW Department of Community Services.[8] The Mother’s hospitalisation on various occasions has placed the child in an unsettled situation. The Father, at paragraph [75] of his affidavit, describes one incident in November 2001 where the Mother became angry and smashed a glass jar with teabags in it at a time when the Father had left the child in her care for a couple of hours.[9] The Father has not left the child in her mother’s care unsupervised since then.[10]
[8] Affidavit of Mr Farnsworth 15.12.2011 at [17], [26], [41], [61]
[9] Ibid at [75]
[10] Ibid at [76]
In my view, there is sufficient evidence of the Mother’s unstable mental state to raise concerns that the child may be subjected to at least psychological harm if she were left unsupervised in her mother’s care. Accordingly, the Mother’s time with the child will be supervised by either of her parents or her brother.
There is no specific evidence of the child’s views. The child appears to have a good relationship with her father, although there is some uncertainty about her relationship with her mother. The fact that the Father is happy for the maternal grandparents to supervise the child’s time with her mother leads to the conclusion that she has a good relationship with them.
Each parent has a willingness and ability to facilitate and encourage a close and loving relationship between X and the other parent. The Mother does not seek to remove the child from her father’s care. The Father’s desire for supervision of the Mother’s time with the child appears to be directed towards his concerns for her safety.
The likely effect on the child of any separation from either parent would appear to be detrimental to her.
The practical difficulties involved in the child spending time with her mother arise from:
a)the distance between the parties’ residences; and
b)the somewhat nature of the mother’s mental illness.
There is no evidence that the Father lacks the capacity to provide for his daughter’s needs. The Mother’s illness would appear to impose a significant limitation on her capacity in this regard.
X is a little girl aged ten years and three months. She does not appear to have any special needs.
Both parents demonstrate a positive attitude to their daughter, although the Mother’s illness imposes limitations on her in this regard.
There is no current family violence order in force. The Father has deposed to incidents in the past where the Mother has acted in a violent manner.
It would be preferable to make an order that would be least likely to lead to further proceedings between the parties. That said, the orders to be made are interim orders and the final hearing is listed to commence in October 2012.
There is an opportunity for the Mother to spend time with X in the presence of her parents from 17th to January 2012, and this should be taken. It would be in the best interests of the child.
I am also of the view that it is in the child’s best interests to spend the second Sunday of every month with her mother, from 9:00am to 5:00pm. This arrangement should be supervised by one or other of the paternal grandparents or the child’s maternal uncle.
I propose to order a Family Report under the provisions of s.62G of the Family Law Act 1975 for the purposes of the final hearing.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 January 2012
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