Gaucho and Gaucho

[2012] FamCA 673

FAMILY COURT OF AUSTRALIA

GAUCHO & GAUCHO [2012] FamCA 673

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking to spend unsupervised time with the child – where there are concerns about the mother’s mental health – where there are concerns about the risk to the emotional and psychological wellbeing of the child should the mother’s mental health deteriorate – best interests – where the Court was not satisfied that there was no unacceptable risk to the child should he commence spending unsupervised time with the mother – application dismissed and current orders continued pending trial.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69

APPLICANT: Mr Gaucho

RESPONDENT: Ms Gaucho

INDEPENDENT CHILDREN’S LAWYER: Ms Fuda Duncliffe

FILE NUMBER: ADC 2537 of 2009

DATE DELIVERED: 2 August 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Kelly & Co

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Nicholls Gervasi & Co

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Fuda Duncliffe

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission

Orders

1. The mother continue to meet with Dr N regularly and follow his recommendations as to treatment.

1. The Mother be permitted to receive school newsletters and school reports from the school and attend at parent teacher interviews and at functions that parents are usually invited to attend.

1. The father ensure that H born … November 2006 (“the child”) continues to attend upon Dr P, that Dr P’s recommendations in relation to the child’s health are followed and that the mother be informed of the child’s progress.

1. The Mother be at liberty to obtain information from Dr P concerning the child’s progress.

1. Paragraphs 4 and 5 of the orders of 17 April 2012 continue with the mother given liberty to apply for further orders if there is any failure to agree upon a suitable supervisor.

1. Liberty to the applicant to apply if there is failure to agree arrangements in relation to the child’s birthday and Christmas Day.

1. The orders of 17 April 2012 are continued with the other specific orders made today

1. The Application in a Case be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaucho & Gaucho has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2537 of 2009

Mr Gaucho

Applicant

And

Ms Gaucho

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of an interim Application by the mother for a change to the arrangements which had been in place for her to spend time with the child, H (“the child”).

2. The proceedings between the mother and father have been outstanding in the Federal Magistrates Court and now this Court for some years.  They concern the parenting orders that should be made for the child who was born in November 2006.

3. The background to the information is, to a certain extent, not in dispute.  The history of the proceedings has been referred to by the Counsel in submissions to me this morning.  The significant matter to be determined is the ability of the Court to make an order which is in the best interests of the child, in particular, protecting the child from any unacceptable risk of abuse.

4. The orders that the mother now seeks are set out in paragraph 32 of her Affidavit filed 22 June 2012.  The orders are sought pending the determination of the final orders in this matter, which have now been set for final determination in the fortnight commencing 22 October before a visiting Judge.  The orders which have been in place by way of interim orders recently are the orders of Burr J made on 31 January 2012.  Those orders provided that the child live with the father and spend time with the mother from 9.00 am until 3.00 pm each Sunday, with all time to be supervised by a carer from S Nanny Service or such other supervisors as the parties may agree, with the approval of the Independent Children’s Lawyer.

5. Handovers were to take place at the mother’s residence at B.  There were other orders made including an order that the father ensure that the child communicates with the mother by Skype or, if unavailable, by telephone call made by the father Tuesday and Thursday of each week between 6.00 pm and 6.30 pm.

6. There are injunctions restraining from the parties from abusing, denigrating or rebuking the other in the presence of the child or in his hearing, or for permitting any other person to do so or discussing the proceedings with or in the child’s presence or hearing.

7. Since then there have been some considerable material filed in this matter, including Affidavits of the mother and the Independent Children’s Lawyer.

8. The issues to be determined at the trial are clearly the impact on the child’s welfare of issues concerning the mother’s mental health and the relationship between the parties and the impact that will have on arrangements such as places of handover.

9. It would appear from the material that there is a concession that the parties have been unable to negotiate, discuss or communicate in a fashion that would suggest they could have equal shared parental responsibility for the child.  I am proceeding on the basis that, at this interim hearing, it is not appropriate to consider that the equal shared parenting presumption applies.

10. It is necessary to consider the interim orders clearly in the context of the decisions of Goode & Goode (2006) FLC 93-286 and the High Court decision of M v M (1988) 166 CLR 69 in relation to ensuring that the child is not exposed to an unacceptable risk.

11. The difficulty in this matter is there is a large amount of material before the Court since January 2012, in which the parties dispute the attitude and allegations of the other party.  There are also on the Court file reports prepared in relation to the mental health of the mother, and reports referring to the mother’s mental health treatment by the Family Consultant.

12. I turn to consider the significant material in relation to the interim orders.  The first Report that was prepared in this matter is the Family Assessment by Ms Ms W in March 2011 which is annexed to the Affidavit of the Independent Children’s Lawyer filed 22 March 2011 (Document 57).

13. That Report is lengthy.  Obviously it is not appropriate to refer to all of the matters raised in the Report.  However, it is significant that it concludes at page 22:

    In developmental terms [the child] is progressing well (3g), evidenced by his presentation in interview and reports of both parents, kindergarten personnel, observations of Dr [P], and results on the Australian Developmental Screening Test.

14. The report then refers to Dr P’s predictions in relation to the child and the ongoing treatment and consultation for the child with Dr P.  It also says on page 22 of that report:

    With respect to future arrangements (3l), as previously raised, cautious approach is advised with respect to changing care arrangements.  [The child] is young, has a limited ability to express his emotional needs and is not yet able to easily seek assistance of trusted adults if feeling unsafe, eg, via telephone.  Further, the history of the conflict between the parties suggests they are unlikely to be able to reach agreement with respect to important decisions at least in the near future.  In these circumstances [the child]’s ongoing primary residence with his father is supported, with a gradual increase in the time shared with his mother, commencing on a daytime basis but moving to overnight stays.  [The child] needs to be supported to share time with both parents and on all special occasions…

15. The report then made recommendations which included the increasing time and for the mother to attend upon and obtain an independent psychiatric assessment.  If that were favourable in relation to her health status and parenting capacity, it was recommended that the child’s time with the mother should be extended on a daytime basis.  It then continues to recommend further steps to be taken so that the mother could increase her time with the child.

16. As a result of that recommendation, one of the documents received by the Court was the report of the independent psychiatrist, Dr R.  Her report of 7 June 2011 is annexed to the Independent Children’s Lawyer’s Affidavit filed 1 July 2011 (Document 62).  That document needs to be considered carefully on the basis that it is the independent assessment of the mother’s mental health.  It sets out the material which the psychiatrist considered and the interviews with the mother.

17. I have been referred to both the positive and negative aspects of that report.  It should be considered carefully in its entirety.  In relation to the conclusions by Dr R, it is significant that under the heading of ‘Mental State Examination’ the psychiatrist sets out certain comments including that;

    [The mother] would make, then retract, negative suggestions relating to [the father], to infer he was an aggressive, bad person, who was having an affair with his mother-in-law.  All these allegations were indirect and then refuted, but this was far from subtle.  She was preoccupied with affidavits and witnesses. (page 15)

18. The author of the report then refers to a number of inconsistencies.  On page 15, the psychiatrist concluded:

    I felt there was mild impairment of judgment.

19. She also says in that paragraph:

    There was a significant lack of self-awareness, or the impact of her actions on others.  Though she complains about the adversarial system, she is very much engaged in adversarial behaviour.

20. Under the heading ‘Insight’ the report comments:

    [The mother] displayed superficial insight into her bipolar disorder.  She described it as mild - though she was detained to hospital for over a month - and behaved very inappropriately re sexuality when manic, apparently unconcerned by this.  She regards her detention to hospital as ‘a mental health holiday’, which she needed.

21. I consider the conclusion under ‘Opinion’ which includes all of the matters on page 16 going through to 17 and onto the end of page 18. The report concludes that:

    Mild hypomania does not impede the ability to function as a parent...

22. Prior to that the conclusion the report states:

    [The mother] was mildly hypomanic when seen, for reasons outlined above.

23. I then take into account the rest of the conclusions.  The last paragraph states:

    The main risk is that the hypomania may escalate to mania, which can be damaging to reputation and relationships.

24. The report then refers to:

    It is protective that she has a trusting relationship with her psychiatrist, Dr. [N], and has regular contact with him.  Having read his report I suspect however that he has underestimated the significance of her current presentation because she is so articulate and likeable.”

25. The report refers to steps which the psychiatrist recommends be taken in relation to medication. 

26. In June 2012 the Court received the further Affidavit of the Independent Children’s Lawyer, to which is annexed the most recent report of the Family Consultant.

27. That report is a lengthy report which I cannot read out in detail.  It contains significant recommendations which, to a large extent, form the basis of the Application in a Case brought by the mother which is, to a certain extent, supported by the Independent Children’s Lawyer.  The father opposes any change to the interim orders pending the resolution of the matters by way of final hearing.

28. The report of Ms W contains a summary of her interviews with the parties and with significant persons such as Dr N and Dr P.  On page 6 of the report, there was an acknowledgement by Dr P that there was significant animosity between the parents and:

    [The child] at 5 years was still trying to understand his mother’s behaviour.

29. Dr P said that she could not comment on the mother’s current mental health, given it had been 10 months since she had had any contact with her and she was not the mother’s therapist.  She could not comment on the impact of the child having unsupervised time with his mother.  When asked if she was concerned this may impact negatively on his development, Dr P said she was “there to pick up the pieces”.

30. Dr P perceived the child needed to see both parents, but the court needed to determine under what circumstances the child spent time with his mother.

31. There is also in that Report detailed reference to the discussions between the Family Consultant and Dr N. 

32. Under ‘Conclusions and Recommendations’, which commence at page 14 of the Family Consultant’s report it states:

    While the parties’ respective allegations require a judicial decision, Dr [P], Child Psychiatrist, reported [the child] continued to be confused about his mother’s behaviour when unwell.  He remained anxious and a slight change in his environment and/or routine exacerbated his anxiety.  There remains a level of risk to [the child]’s emotional wellbeing with any deterioration in [the mother]’s mental health as experienced in 2011 and a cautious approach needs to be adopted when considering a change in arrangements.  In view of Dr [N]’s report, [the mother]’s mental health has remained stable for some time, her medication has been increased and remains closely monitored there is, in my view, a need to commence some unsupervised time prior to a trial, to assess [the child]’s management of unsupervised visits and [the mother]’s ability to cope with parenting demands.  Adequate monitoring of [the mother]’s mental health is required in an ongoing way if [the child]’s needs are to be prioritised.  This will be particularly important if [the mother]’s medication is reduced at a future time.  The extent to which the measures proposed by [the mother] can adequately monitor her mental health remain a matter for evidence, particularly given [the father]’s report [the mother] frequently changed circumstances in her life including friendships.

33. Parts of that section of the report are relied upon by the mother in bringing her Application.  Parts of the report are highlighted by the father’s Counsel in opposition to any change in the time. 

34. The first paragraph of page 17 of the report also includes:

    A heightened degree of ongoing monitoring of [the mother]’s mental health is paramount to ensuring [the child]’s needs are prioritised.

35. The report refers to his attendance at school and his fortnightly consultations with Dr P as providing an appropriate level of monitoring his progress and needs. 

36. The recommendations of the report then conclude that the child should commence spending time with the mother on an unsupervised basis prior to trial, but a supervisor be available to conduct handovers and remain in attendance for the first hour of the visits for at least the first four visits.

37. The recommendations continue to make reference to Dr N’s continuing treatment of the mother and suggesting that the father have some counselling to assist him in managing the future relationship and communication with the mother (I incorporate all of the recommendations without reading them out in full).

38. The more recent affidavits of the parties relates to the issue of increasing the time.  The relationship between the parties has not markedly improved and the father is still unable to accept that the child would not be at risk if there were some unsupervised time prior to the issues being determined at trial.

39. The Court is in the position of therefore having independent reports (of the Family Consultant and the independent assessment of the mother’s psychiatric health).  There are however significant issues raised in relation to the standard of risk or the acceptability of any risk to the child if there were time to spent with the mother unsupervised.

40. The report from the Family Consultant needs to be seen in the context of accepting Dr N’ diagnosis.  The father’s counsel has indicated that there will be considerable stress placed upon Dr N’s diagnosis of the mother, challenges to his independence and how his assessment should be treated at the final hearing. 

41. The parties all agree that the matters which the court has to consider in this matter are the primary factors; the benefit to the child of having a meaningful relationship with both his parents and the need to protect the child from any risk of abuse.

42. It is, however, not appropriate for the Court to attempt to assess the risk to the child of the unsupervised time with the mother until such time as the detailed evidence of the parties and their witnesses and, in particular, the expert’s evidence has been tested.  The Court notes that the Family Consultant’s most recent report refers to a level of risk to the child’s emotional wellbeing with any deterioration in the mother’s mental health.

43. I am not satisfied that the court can, at this stage, determine that there is no unacceptable risk to the child’s emotional and psychological health.  That is on the basis that the child has had, and continues to have, the need for assistance from Dr P.  The Court is not able presently to determine whether the mother’s mental health is likely to deteriorate quickly which would leave the child in circumstances were there could be a significant risk to the child by that deterioration of the mother’s health.

44. I am therefore not satisfied that it is in the best interests of the child at this stage to put into effect the recommendations of the Family Consultant, which are yet to be the subject of consideration after all the evidence has been tested by way of cross-examination.

45. I therefore do not propose to make the orders changing the arrangements for supervised time to continue pending the trial.  The orders therefore leave in place the handover arrangements that are in existence, the Skype telephone calls for the Tuesdays and Thursdays between 6.00 pm and 6.30 pm.  The mother is proposing that there be an order that the mother continue to meet with Dr N.  That would seem to be appropriate.

ORDERS DELIVERED

1. (In relation to 32.7 and 32.8, in relation to the father consulting counsellors or Dr N, those matters have been raised by the Family Consultant and need to be considered by the father, Mr Jordan, and at this stage I am not proposing to make an order.  They will be matters, no doubt, the trial judge will take into account as to the father’s willingness to overcome some of the obvious difficulties with the parents consulting or communicating) (Referred to as notes only).

2. Otherwise, I dismiss the Application in a Case.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 August 2012.

Associate: 

Date:  15 August 2012