Gidley and Cohen
[2016] FCCA 2638
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIDLEY & COHEN | [2016] FCCA 2638 |
| Catchwords: FAMILY LAW – Children – Rice & Asplund. |
| Legislation: Family Law Act 1975 s.60CC |
| Rice & Asplund [1979] FLC 90-725 Marsden & Winch (2009) 42 Fam LR 1 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MR GIDLEY |
| Respondent: | MS COHEN |
| File Number: | SYC 2658 of 2013 |
| Judgment of: | Judge Boyle |
| Hearing date: | 14 September 2016 |
| Date of Last Submission: | 14 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Karragiannis |
| Solicitors for the Respondent: | Legal Aid Nsw Sydney Central Family Law |
ORDERS
The father’s application filed 24 March 2016 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gidley & Cohen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2658 of 2013
| MR GIDLEY |
Applicant
And
| MS COHEN |
Respondent
REASONS FOR JUDGMENT
The father seeks to vary final parenting orders made by consent on 24 October 2013 (“the orders”). The matter was listed for hearing on the preliminary issue, commonly described as a Rice & Asplund hearing. The father seeks final orders for the children to live in an equal time arrangement of one week with him, and one week with the mother. The mother opposes a re-opening of parenting issues and that the father’s application be dismissed on a threshold basis.
The orders provide for the mother to have sole parental responsibility for the children X, who is aged eight, and Y, who is aged five. The children live with the mother. They spend supervised time with the father on alternate Sundays from 11 am until 4 pm, and on other social occasions from 4 pm until 6 pm. The father’s time is supervised by the paternal great-grandmother, and if she is not available, another paternal family member approved by the mother.
The father is ordered to provide the mother with a medical certificate from his treating psychiatrist every four months, and in the event that he is not under medical treatment, time supervised by a family member is suspended and supervised time shall occur at a contact centre. The orders seek to provide a safety net for the children so they can have the benefit of a relationship with their father and minimise any risk to them in spending time with him.
On 15 June 2016 when the matter was set down for this hearing, the father was directed to file and serve an updating affidavit and report from his psychiatrist by 22 August 2016. This has not occurred.
The father at the commencement of the proceedings applied for an adjournment. The father says that a week prior to the hearing date he was refused legal aid. He told the Court he has not filed an application to review that decision, nor taken any steps to do so.
The father referred to the difficulty of being able to provide a psychiatric report as directed. He told the Court Dr P, the psychiatrist that he wished to get a report from, was overseas. The father says he has seen Dr P from time to time since 2013. I have no evidence about that other than the father’s statement, and I note that Dr P is not referred to in any of the medical records tendered.
Providing the father with an adjournment when the matter has been listed since 15 June 2016 would have caused hardship to the mother, who has the full-time care of the two children of the parties. I am not satisfied that an adjournment would make any difference to the father’s readiness to proceed in this matter. The application was refused.
The father relies on an initiating application filed 24 March 2016, and affidavits filed 24 March 2016, and 12 September 2016. The mother relies on an amended response filed 16 June 2016, her affidavit filed 25 May 2016, notice of risk filed 25 May 2016 and affidavit of the mother filed 31 August 2016.
Annexed to the father’s affidavit filed 24 March 2016 is a letter addressed “To whom it may concern” by Dr Y dated 15 January 2016. It states:
This is to state that Mr Gidley, who has been under my regular care since 12 March 2015, has been quite stable on the current medications. In my opinion, he could see his children unsupervised.[1]
[1] Affidavit of Mr Gidley filed 24 March 2016, Annexure A.
At annexure B to the same affidavit, there is a letter from Dr G, who is the father’s general practitioner.[2] He certifies that the father can see his children unsupervised as he is taking his medication regularly.[3] Annexed to the affidavit filed 12 September 2016 is a further letter from Dr Y dated 12 September 2016, addressed “To whom it may concern”. He states the father has been under his care since 12 March 2015 and is diagnosed with chronic schizophrenia. The father is currently maintained, according to Dr Y, on Abilify medication injected monthly, and taken orally daily. Dr Y states:
On that regimen he is quite stable and he has been stable for a long period. I am aware that he currently lives in his mother’s house and is quite happy there. In my view, he is quite fit to see his children unsupervised. There would not be any risk for his children to spend occasional nights with him[4]
[2] Affidavit of the Father filed 12 September 2016, Annexure B.
[3] Ibid.
[4] Affidavit of the Father filed 12 September 2016, p 6.
The father has also annexed two letters from Dr A, dated 15 January 2016, and 12 September 2016. Dr A is the father’s treating psychologist. On 15 January 2016, Dr A noted that:
The father’s symptoms of schizophrenia appear to have improved and his functioning appears sound. He reports he is taking his medication consistently and I believe it may benefit him to see his children regularly. In my opinion, his improvements appear significant enough to be able to play a role in his children’s life and for him to fulfil his responsibility as a father.[5]
[5] Affidavit of the Father filed 12 September 2016, p 8.
In the letter of 12 September 2016, Dr A refers to the father having been a client of hers since August 2014 and that she sees him every month for supportive counselling.
He [the father] receives ongoing treatment from Dr Y with the use of anti-psychotic medication. He reported in the last few months that his psychotic symptoms have reduced and hallucinations are less frequent and severe. His functioning appears sound and within the sessions he is coherent, engaging and a proactive participant within therapy.
He has never once indicated anything that would suggest he is incapable of caring for his children and does not present with risk behaviours. He does not present with symptoms of depression or anxiety. He has good family supports and he leads a simple, family-focused lifestyle. Mr Gidley’s symptoms at this stage appear stable, and he will need to continue treatment long term to manage this.
The Exhibits
The following material was tendered:
a)F1. Letter from Dr J to Dr L dated 9 August 2013.
b)M1. Tagged subpoenaed documents from NSW Police in relation to the father.
c)M2. Tagged subpoenaed documents from (omitted) Hospital.
d)M3. Tagged subpoenaed documents from Dr L.
e)M4. Tagged subpoenaed documents from Dr G.
f)M5. Tagged notes from the files of Dr Y in relation to the father.
The material that was tendered by the mother presents a worrying picture of the father’s compliance with medication for schizophrenia and the stability of his mental health, at odds with the letters from doctors annexed to the father’s affidavit. This is detailed below.
Background
The mother is 33 years old and the father is 32 years old. They commenced a relationship in 2000 and married in 2008. From about 2009, the mother suggests that the father’s behaviour was unusual and that he was expressing paranoid thoughts and suffered from mood swings. In January 2012, the father was hospitalised at (omitted) Hospital and diagnosed with schizophrenia.
Dr Y’s account of the father’s history records:
The father began to hear voices when he was around 10 years old and it was only at the age of 27, in 2010, when he was diagnosed with paranoid schizophrenia and received treatment. [6]
[6] Exhibit M5.
The father’s mental health has been stable at times. Dr J noted on 9 August 2013 that he was very pleased with the father’s progress, and that he has shown he can grasp CBT principles.[7] Unfortunately, the history from the material contained in the exhibits suggests that the father’s mental health has varied dramatically from time to time since the orders were made.
[7] Exhibit F1.
The records from (omitted) Hospital refer to the father being admitted under the Mental Health Act from 29 October 2013 to 21 November 2013.[8] The discharge summary suggests the reason for the admission was non-compliance with anti-psychotic medication. As a result, the father experienced an exacerbation of audial and visual hallucinations[9].
[8] Exhibit M2.
[9] Ibid.
On 19 November 2013, Dr C, at (omitted) Hospital, wrote in a letter to the Mental Health Tribunal with respect to the father:
Insight into illness was minimal. There was, at that point, a history of non-compliance in that in August 2012, he stopped attending his general practitioner for anti-psychotic injections[10].
[10] Exhibit M2.
Dr L’s records refer to a telephone call from the father’s grandmother on 12 January 2015 that he was not having regular injections, had moved out of the area and was now living with his mother.[11] On 21 January 2015 it was noted that he had not had injections of medication for several months. He was referred to a psychiatrist, Dr B.[12]
[11] Exhibit M3.
[12] Exhibit M3.
On 16 March 2015, Dr Y wrote to Dr L:
Intermittently during the visit, he mumbled to himself, presumably in response to hallucinations. When asked, he did not deny that he still suffers psychotic symptoms[13].
[13] Exhibit M5.
It was stressed to him by Dr Y that it was important he take medication regularly, and Dr Y thought he was accepting of that advice.
Dr Y’s notes of 31 March 2015 refer to the father telling him:
I can still see angels and God but feel calmer on medication.
On 9 April 2015, the father was taken to Dr L’s practice by his sister, Ms N. He drove off refusing to have the injection and his sister was advised to get him to hospital, and that she may need to contact the police.[14]
[14] Exhibit M3.
Dr L, another general practitioner seen by the father on 5 November 2015, referred to him as not being able to return to work indefinitely and that his mother was staying with him full-time to look after him.
On 8 January 2016 the father was seen by Dr L who referred to him as:
Still agitated most times. Mild visual and auditory hallucinations, can see angel and demons.[15]
[15] Exhibit M4.
On 4 January 2016 Dr L saw the father, who was requesting a letter that he was fit to see the children unsupervised. He was advised to get a letter from Dr L and see a psychiatrist.
On 25 February 2016 he told Dr L that he was seeing Dr L monthly for depot injections, and was advised to see Dr L for all problems.[16]
[16] Exhibit M3.
Dr A wrote to Dr Y on 8 April 2016 and referred to seeing the father that day:
Today, patient’s auditory and visual hallucinations and paranoid delusions - individuals plotting against him for the last two weeks.[17]
[17] Exhibit M5.
On 19 May 2016 the father told Dr L he was on (omitted) injections monthly administered by Dr L, but that he had lost the script.[18]
[18] Exhibit M3.
On 19 May 2016 the father met with Dr Y, who noted: “this morning started to hallucinate again. Aunty held knife stabbing him”[19].
[19] Exhibit M5.
The father did not see the children from January 2015, when he advised the mother that he was no longer taking medication, until December 2015 when he provided a certificate from Dr L that he was taking medication regularly. During this time the mother attempted to organise supervised time at Interrelate (omitted), but the father did not wish to have time at the contact centre.
There have been occasions after spending time with their father when both X and Y have been upset according to the mother.
The Law
The principle in Rice & Asplund[20] is that the Court, in considering a fresh application for parenting orders, should have regard to any earlier order and to the reasons for and the material on which that order was based:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever-present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that … there is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which could have been material.
[20] [1979] FLC 90-725.
The Full Court in Marsden & Winch[21] suggested matters that should be considered by the Court when considering embarking upon another hearing in a parenting case:
a)The past circumstances including the reasons for the decision and the evidence upon which it was based;
b)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;
c)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[21] (2009) 42 Fam LR 1.
In considering those factors as they relate to the facts in this case, it is clear from the previous orders that the father’s mental health was very much an issue at that time. Both parties’ material refers to that, as do the orders themselves. It is also clear on the material before me that there were issues of non-compliance by the father with his medication at the time the orders were made, and that concern is ongoing. It is apparent from the material tendered, which was produced by the father’s treating doctors, although it is not made explicit in the letters provided to the father. It is unclear why the doctor’s letters do not reflect the concerns raised in their notes, and it is unfortunate that they do not do so.
The father was directed to file a report from his psychiatrist and has not done so. He says that he was not able to do so because he did not have a grant of legal aid. The material that has been provided by him when viewed with the material tendered from the father’s treating doctors and psychologist, taken at its highest, cannot sustain the submission that there has been a significant and substantial change to his circumstances, such as would warrant a reopening of the parenting matters.
Supervision is currently being provided by either of the father’s grandparents, or his sister Ms N, those people being agreed by the mother. There is no evidence from any of those people about the progress of time with the children, nor the way that the children respond to the father when he spends time with them.
The rule in Rice & Asplund has been held to be a manifestation of the best interests principle.[22] The initial proceedings in this mater were resolved by consent, so there is no assistance available from a judgment. A brief consideration of the relevant factors from section 60CC is helpful in determining the best interests of these children currently.
Primary considerations
[22] SPS & PLS (2008) FLC 93-363 at 48.
Section 60CC(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.
The current orders balance the children’s need for a meaningful relationship with their father, with the need to protect the children from physical or psychological harm.
Unfortunately, the father has had ongoing difficulty with respect to compliance with medication for his schizophrenia. He suffers from auditory and visual hallucinations from time to time, some of which are violent in their content. He has also suffered from paranoia, as is noted in the medical material referred to above. These are matters that would pose a risk for the children’s psychological, and possibly physical, welfare should unsupervised time occur.
Section 60CC(3)(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.
The children are eight years and five years old respectively. The father asserts that the children want to spend increased time including overnight time with him. Taking his evidence at its highest, firstly the children’s views are not determinative in this matter given their age. Secondly, there is an overwhelming need for the children to be protected from potential harm, which would override any view they may have expressed.
Section 60CC(3)(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);
The mother is the primary carer of the children and has always been so. There is no challenge that the children have a close relationship with her, as she does with them.
The father has spent time with the children pursuant to the orders of 2013, supervised by an agreed family member. There have been periods where the father has been unable to spend time with the children due to problems with compliance with treatment for his schizophrenia. This has caused significant periods for these children where they have not seen their father, which has no doubt interfered with the relationship they have with him. Nonetheless it seems they have a good relationship within those constraints.
Section 60CC(3)(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 long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
Pursuant to the orders of 2013 the mother has sole parental responsibility for the children and has made decisions with respect to their care since that time. It appears that the children are doing well at school and otherwise. The father has not, because of that order, had the opportunity to so participate.
The father’s mental health problems have inhibited him from taking up all opportunities to see the children.
Section 60CC(3)(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;
The uncertainty of the father’s mental health is such that there is a concern that if the orders were varied the children would be exposed to a level of unacceptable risk.
Section 60CC(3)(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
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has demonstrated that she has the capacity to meet the children’s needs and has been doing so throughout their lives. The father’s mental health issues seriously affect his capacity to meet the children’s needs, and it is unclear to what extent he would be able to do so in an unsupervised context.
The orders require the father to provide a letter to the mother every four months from his treating psychiatrist. The letter is to provide details of:
a)the dates of the father’s attendance on the psychiatrist;
b)that the father is compliant with the treatment plan recommended by the psychiatrist;
c)that in the psychiatrist’s opinion the father’s presentation during his consultations did not indicate that he was a risk to the child.
It does not appear that letters provided by the father’s psychiatrist have properly complied with this order. The material tendered makes clear that Dr Y has not disclosed troubling symptoms that the father has suffered from, and non-compliance with taking prescribed medication.
On the evidence there is no likelihood of the orders being varied in a significant way as a result of a new hearing, given the persistent problems the father experiences with his mental health. These problems predated the orders made in 2013.
Clearly this is not a matter within the control of the father. His mental health issues are very complex, and create significant problems for him. However, it is in the children’s best interests to be provided with stable parenting, and to be able to develop a relationship with their father in circumstances that are safe for them.
The supervision currently provided assists in providing a safety net for the children. There are concerns raised by the mother that the supervisors may, at times, be overborne by the father and his mother. The paternal grandmother is not a supervisor pursuant to the orders.
The change that the father seeks to the orders would have the children in a shared care arrangement, which is entirely unrealistic on the evidence before me. For there to be further litigation for the children at this stage would be contrary to their best interests, as it has not been demonstrated that a sufficient change in circumstances has occurred since the parenting orders were made.
The mother has sought to maintain a relationship for the children with the father despite his non-compliance with taking prescribed medication, and the requirement for supervision from time to time. The mother is clearly doing the best that she can to maintain this important relationship for the children with their father, balanced with any risks for them in being exposed to their father at times his mental health deteriorates.
The father’s application initiating proceedings dated 24 March 2016 is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Date: 20 October 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Costs
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