HARBROW & HARBROW
[2010] FMCAfam 834
•9 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARBROW & HARBROW | [2010] FMCAfam 834 |
| FAMILY LAW – CHILDREN – Parenting Orders – Interim Orders – supervision – mental health issues – whether unacceptable risk – two children aged 3 years 9 months and 1 year 9 months – objects of the Family Law Act 1975 (Cth) – best interests of the children the paramount consideration – benefit to children in spending time with grandparents. PRACTICE & PROCEDURE – Affidavits – leave refused to rely on docu ments filed out of time – need to comply with timetables for filing affidavits in directions made by Court in preparation for hearing – undesirability of allowing deponents to prepare their own affidavits. |
| Family Law Act 1975, ss.11C, 11F,60B, 60CA, 60CC, 61DA, 61DB, 65D, 67ZC |
| L v T (1995) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 Bright & Bright v Bright & Mackley (1995) FLC 92-570 |
| Applicant: | Mr harbrow |
| Respondent: | ms harbrow |
| File Number: | SYC 1292 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 August 2010 |
| Date of Last Submission: | 3 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Loukas |
| Solicitors for the Applicant: | No solicitor |
| Solicitor for the Respondent: | Ms Perla |
| Solicitors for the Respondent: | Diana Perla & Associates |
ORDERS UNTIL FURTHER ORDER
That the children [X] born [in] 2006 and [Y] born [in] 2008 live with the Applicant Father.
That the children [X] and [Y] spend time with the Respondent Mother as follows:
(a)Between the hours of 9:00am and 4:00pm each Tuesday;
(b)From 9:00am on Friday to 9:00am on Sunday each alternate week;
(c)From 9:00am to 4:00pm on Mother’s Day if the children would not otherwise be spending time with the Mother as provided by Order (2)(b) above; and
(d)From 9:00am to 4:00pm on the other Friday in each fortnight.
All time spent by the Mother with the said children is to be supervised by one or other of the maternal grandparents Ms L and Mr L or such other adult person as the parties agree.
Order (2) above is subject to the following conditions:
(a)The Mother must not consume any alcohol at any time whilst the children are spending time with her or for eight (8) hours beforehand;
(b)The Mother must not take more than the medically prescribed quantity of any drug or medication;
(c)The Mother must not administer any form of medication to either of the said children without consulting the Father; and
(d)The Mother must not drive any motor vehicle with either of the said children as a passenger.
Order (2) is also subject to the condition that the Mother must continue to attend regular medical and psychiatric and psychological appointments as prescribed by her treating doctors and comply with all reasonable treatment prescribed by her treating doctors.
The Father is to have sole parental responsibility for the said children.
Neither party is to denigrate or criticise the other in the presence or hearing of either of the said children or permit any third person to do so.
Neither party is to use any form of physical discipline or chastisement on either of the said children.
Each party is to advise the other of any medical emergency suffered by either of the said children as soon as is reasonably practicable.
Each party must advise the other of any change to their residential address or landline or mobile telephone number within forty-eight (48) hours.
IT IS NOTED that publication of this judgment under the pseudonym Harbrow & Harbrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 1292 of 2010
| mr harbrow |
Applicant
And
| ms harbrow |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim orders in relation to the parties’ two children, [X] and [Y], both of whom are still very young. They live with their father and paternal grandparents and see their mother from 9:00am to 4:00pm three days a week.
The Father’s proposal
The Father seeks that the status quo remain, namely, that the Mother spends time with the children on Tuesdays, Fridays and Sundays from. They attend pre-school (or day care) from 9:00am to 3:00pm on Mondays and Wednesdays.
The Mother’s proposal
The Mother, by her amended response filed on 21st July 2010, seeks a variation to that arrangement, by increasing the amount of time that the children spend with her.
Her primary claim is that, over a fortnightly cycle, the children spend time with her:
a)From 9:00am to 6:00pm on the Tuesday of Week 1;
b)From 9:30am to 4:30pm on the Friday of Week 1;
c)From 9:00am to 6:00pm on the Tuesday of Week 2; and
d)
From 9:30am on the Friday until 6:00pm on the Sunday of
Week 2.
Thus the children would still spend every Tuesday and Friday with her, as they do now, but they would no longer spend the Sunday of Week 1 with her. Instead, they would have a block of time with her each alternate weekend, from the Friday morning to the Sunday evening, thereby staying two nights with her.
Alternatively, the Mother’s “fall-back” proposal is that the children spend each Tuesday, Thursday, Friday and Sunday with her from 9:00am to 4:00pm. That way, the children would spend an extra day with her each week, being the Thursday.
Background
The parties were married [in] 2004 and separated in either October or November 2009 (the parties give two different dates).
There are two children of the marriage:
a)[X] was born [in] 2006; and
b)[Y] was born [in] 2008.
The children both live with their father. He lives with his parents. The Father works full-time, doing shift work, but deposes that he has applied to work part-time during the evenings.
The Mother was diagnosed with Borderline Personality disorder in 2004. She was diagnosed with depression in 2004. She has lived with her parents since separation.
The Mother was seeing a psychologist on a regular basis. She disclosed to her psychologist that she was driving in the car with the children when she started pulling at her fingers to see if she could break them. The psychologist notified the NSW Department of Community Services. The Department intervened and, as a result, the children were placed in the care of the Father, although it does not appear that any Court order was made. The Mother has been seeing the children on a supervised basis since then. She has not had the children staying overnight with her on any occasion.
The Father commenced proceedings in this Court by filing an application and affidavit in support on 3rd March 2010. The Mother filed a response and several supporting affidavits on 10th May 2010. She filed a further affidavit on 11th June 2010 an amended application on 21st July 2010.
On 15th June 2010 the matter was listed for interim hearing on 3rd August 2010. The parties were directed to file any further affidavits upon which they sought to rely by 23rd July 2010. The parties were also directed to attend a Child Dispute Conference with a family consultant under the provisions of s.11F of the Family Law Act.
The parties attended the child dispute conference on 6th July 2010 and agreed to continue the current arrangement for the Mother to spend time with the children until the interim hearing. In her Memorandum to the Court, the family consultant noted that one of the issues impeding resolution was “The mother’s mental health and its impact, if any, on her ability to care for the children and adequately provide for their needs”.
The family consultant recommended that, for the future progress of the matter, the Court would need to decide:
…whether a Child and Family Psychiatric assessment would be more appropriate than a Family Report to better assess the mother’s mental health, and the impact of this, if any, on parent capacity and on the relationships the children experience with her.
Evidence
The Father sought to rely on his originating affidavit sworn on 16th February 2010 and on two affidavits by family members, sworn or affirmed on 30th July 2010 and filed that same day. The Mother’s solicitor, Ms Perla, objected to those affidavits as being out of time, having been filed a week later than the time directed by the Court in the orders of 15th June 2010.
After an examination of the affidavits, I refused leave to rely on either one of them. There was no reason given as to why they were so late, and neither one revealed any significant or urgent change to the situation that would warrant the Court granting leave to rely on them.
Neither affidavit was in proper form. Counsel for the Father told the Court that the deponents had prepared their affidavits themselves.
It should be made clear that practitioners must comply with the Court’s directions imposing a timetable for the filing and service of documents. It is not acceptable for affidavits to be filed at the last minute, as it does not give the other party sufficient time to obtain instructions in order to meet the late-filed material. If it is necessary to adjourn proceedings because parties do not comply with the Court’s directions, it will usually sound in costs.
It should also be made clear that the practice by some practitioners of outsourcing the task of preparation of affidavits to the deponents themselves is undesirable. The resultant document is quite frequently not in proper form and, worse, frequently fails to comply with the law of evidence. “Cheer Squad” affidavits that are more submissions than statements of fact and contain exhortations to the Court to make orders in accordance with the opinion of the deponents are usually of questionable evidentiary value and, if admitted, will seldom carry much weight.
The Mother relied on her affidavits sworn on 29th April and 20th July 2010, together with affidavits by:
a)Her father, Mr L ;
b)Her mother, Ms L;
c)Dr H and Ms A (a joint affidavit);
d)Mr G; and
e)Ms K .
Both parties relied on material produced on subpoena from Human Services Community Services (formerly the Department of Community Services) and S Clinical Psychology.
The Father expresses concern in his affidavit about a number of incidents involving the mother in late 2009 and early 2010. He is concerned about what he describes as the Mother’s “dangerous propensity to self harm and to endanger the children.”[1]
[1] Affidavit of father 16.2.2010 at paragraph [14]
Two of these incidents took place whilst the Mother was driving a car with the two children as passengers. One was the incident which the Mother disclosed to the psychologist that led to the notification to what was then the Department of Community Services. The other consisted of the Mother apparently losing consciousness and driving onto the incorrect side of the road. Again, the children were in the car.[2]
[2] Ibid
The Father deposes to the Mother taking inappropriate amounts of medication, eight Panadeine in four hours,[3] abuse of alcohol,[4] opposing the children being immunised against disease,[5] exhibiting signs of “scattered and confused” thoughts,[6] and constantly being “drowsy and lethargic”.[7]
[3] Ibid at [15]
[4] Ibid at [16]-[17]
[5] Ibid at [18]
[6] Ibid at [21]
[7] Ibid at [22]
The Mother concedes that she has been diagnosed with depression, for which she has been prescribed anti-depressant medication and has been attending a psychologist. She deposes that she has become involved with a program called Brighter Futures, an early intervention program which was recommended by her psychologist, Ms V.[8]
[8] Affidavit of the mother 29.4.2010 at paragraph [22]
The Mother has lived with her parents since separation from the Father, where there is a bedroom available for the two children to use.[9]
[9] Ibid at [25]
She does not believe that she is a danger to the children. She accepts that there are concerns about the children’s safety and concedes that she will continue to spend time with the children in the presence of her family members. She would “comply with any supervision requirements pursuant to a Court Order”.[10]
[10] Ibid at [29]
The Mother confirms the incident where she drove onto the wrong side of the road but said that she misjudged the turning lane and went onto the wrong side of the road. She denies that the children were in the car.[11] She does not consider her driving to be dangerous and seeks to continue to be able to drive the children, as her mother does not drive a car.
[11] Ibid at [30.14.(ii)]
She denies taking eight Panadeine and says that she has never abused medication whilst the children are in her care. She concedes having taken more than the recommended dose when the children were not in her care.[12]
[12] Ibid at [30.15]
The Mother concedes drinking seven or eight beers on one occasion in Melbourne in 2009, which she says was a very unusual occurrence. She states;
When the children are with me I do not drink.[13]
[13] Ibid at [30.17]
The Mother concedes she is opposed to immunization.[14]
[14] Ibid at [30.18]
In her affidavit sworn 20th July 2010, the Mother deposes to her concern about the health of the younger child, [Y], [in] June 2010. She took the child to a doctor and later to T Hospital. She rang the Father who came to the hospital.[15]
[15] Mother’s affidavit 20.7.2010 at paragraph [7]
Each week the Mother attends a both a group session and an individual session with her psychologist, Ms A. She is no longer on anti-depressant medication and is being monitored by her psychiatrist,
Dr H.[16]
[16] Ibid at [10]-[11]
The joint affidavit of Dr H and Ms A annexes a joint report dated April 2010, in which the Mother is described as having been diagnosed with Borderline Personality Disorder with brief periods of low intent and low lethality Deliberate Self-Harm. The Mother is being treated for her mood issues. Dr H and Ms A have not advised the Mother to cease driving with the children, saying:
As far as we are aware, there is no evidence of her directly harming the children, or intending to harm them.[17]
[17] Affidavit of Dr H and Ms A 3.5.2010 at Annexure “B” page 6
However, they go on to report that:
Ms Harbrow is at chronic risk of DSH[18], typically low intent and low lethality, which is one of the reasons she is attending DBT[19]. She is also at chronic risk of suicide, which is likely to escalate at times of psychosocial and interpersonal stress, such as her recent separation. Suicide and infanticide are low prevalence events, even in high risk populations, and as such are impossible to predict with any degree of accuracy.
If Ms Harbrow’s children are exposed to these behaviours they are at risk. It is difficult to assess if and to what degree this has occurred.[20]
[18] Deliberate Self-Harm
[19] Dialectical Behaviour Therapy
[20] Affidavit of Dr H and Ms A at Annexure “B” page 6
The Mother also relies on affidavits by her mother, Ms L, sworn on 29th April 2010, and her father, Mr L , sworn on 21st April 2010. Their affidavits depose to the fact that the Mother lives with them and the children spend time with the Mother at their home on Tuesdays, Fridays and Sundays. Ms L states:
I am with them for the entire time that the children spend with
Ms Harbrow.[21]
[21] Affidavit of Ms L 29.4.2010 at paragraph [5]
Ms L has offered herself as a supervisor of the children whilst they are in the Mother’s care, and has signed an undertaking to the Court to that effect. Mr L also offers himself as a supervisor, although he says, quite frankly:
I would prefer not to have to be a supervisor. It is an onerous task which I take very seriously. Having promised the supervision to Mr Harbrow, my wife and I have both complied with the supervision commitment.[22]
[22] Affidavit of Mr L 21.4.2010 at [14]
What Mr and Ms L, and the Mother, propose, is that the children would stay overnight at their home from Friday afternoon to Sunday afternoon. This would involve the children being with them for the Jewish Sabbath. Ms L explains this proposal at paragraph [11] of her affidavit:
I am of the Jewish faith. My husband and I have always run a Jewish home. We keep the Jewish festivals and celebrate the Jewish Sabbath, which is Friday night and Saturday. Every Friday night, we have a Sabbath dinner where I light the candles and some songs are sung to bring in the Sabbath. We eat a festive meal. Saturday itself is a day of rest and we try to stay at home and not rush around at shops but spend family time together. We do not drive on the Sabbath and spend it as a family day of rest. Since January 2010, we have not had the opportunity to have the children on the Friday night or the Saturday and we have had to return the children early at 4.30 pm to ensure that we can be back home before the Sabbath comes in. It would be lovely for the children to be able to spend time with us on the Friday night and the Saturday to celebrate the Sabbath in a familiar environment to them.[23]
[23] Affidavit of Ms L 29.4. 2010 at [11]
Ms L does not have a drivers licence.
Submissions
Counsel for the Father referred the Court to the subpoenaed material from the Department of Community Services and from S Clinical Psychology. In the material from the Department, he pointed to concerns in an Assessment Report from October 2008 which contains an analysis of issues that says (inter alia):
There are currently concerns for the physical wellbeing of [X] due to mum not providing him with adequate nutrition. There are further concerns due to mum suicidal ideations.[24]
[24] Exhibit 1 at F3
Mr Loukas pointed to a Contact Record dated 19th December 2009 where concerns were expressed about the safety and wellbeing of the children being solely in the Mother’s care. The case plan that arose from that was that the children were to be placed with the Father and contact with the Mother was to be supervised by him.
Mr Loukas also raised a concern that the Mother appeared to have disclosed a form of sexual abuse to her psychologist in a session on 11th August 2009:
Ms Harbrow described having activated memories of her own experience as a child, of feeling it was very important to be very still and get to sleep, and feeling “panic and nausea” and holding her breath and feeling it was important to get the “other” to sleep/praying they’d fall asleep, and of wanting to “get out of the room” but feeling “frozen”. Ms Harbrow stated that she felt someone may have been touching her or having sex with her, and that it was important not to move so they would fall asleep. In reporting this Ms Harbrow experienced feeling “frozen” and that she could not feel from the legs down. Ms Harbrow was able to see this as a body memory/re-experiencing symptom, and she stated that it felt good to have disclosed her suspected abuse.[25]
[25] Exhibit 1 at F10
Earlier, the Mother had disclosed on or about 17th February 2009 that she “suspected she may have been a victim of sexual abuse, but that she could not recall actual events that she considered to be sexual abuse”. [26]
[26] Exhibit 1 at F6
It was submitted on behalf of the Father that the status quo should remain until the final hearing and that overnight stays were inappropriate. To increase the number of days per week that the children spend with the Mother would be “unfair” to the father.
Ms Perla, for the Mother, submitted that the Mother’s proposal would ensure that she was not alone with the children. The Department of Human Services had closed its file on 9th March 2010. What the Mother was seeking was more supervised time with the children.
Ms Perla referred the Court to the objects of the Family Law Act set out in s.60B, particularly ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests.
She also submitted that the issues of the Mother’s belief in the benefits of homeopathy and her opposition to immunisation were matters best left to a final hearing.
Conclusions
The best interests of the children are the paramount consideration in deciding whether to make a parenting order in relation to the child (s.60CA). The Court determines what it is in the children’s best interests by considering the primary considerations set out in s.60CC(2) and the additional considerations on s.60CC(3).
The primary considerations are:
a)The benefit to the children of having a meaningful relationship with both of their parents; and
b)The need to protect them from physical or psychological harm from abuse, neglect or family violence.
Additional considerations include any views expressed by the children (they are too young in this case for their views to be sought), the nature of their relationship with each parent and with other persons, including grandparents, and the willingness and ability of each parent to facilitate a close and continuing relationship between the children and the other parent.
The Court must also consider whether the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility does in fact apply, or whether it would not be appropriate for the presumption to be applied (s.61DA). In any event, the matter must be considered afresh when making a final order (s.61DB).
The issue here is whether it is in the children’s best interests to make an interim order increasing the Mother’s time with them to include overnight contact. This must be considered in light of the need to ensure to protect them from harm.
There is no evidence of abuse or family violence, but concerns have been expressed about neglect of the children. There is some evidence that the Mother’s chronic suicidal ideation and propensity to self harm poses a risk to the children. The Mother is apparently complying with prescribed treatment and is spending time with the children under supervision of her parents.
The question is whether there is an unacceptable risk of harm to the children in the Mother’s proposal to spend some overnight time with the children in her parents’ home, supervised by her parents. The short answer is that there is not an unacceptable risk.
The question of the Mother’s apparent disclosure of some form of sexual abuse as a child can in some way be sheeted home to one or other of her parents, rendering them unsuitable as supervisors, has been raised, although only in a tentative way. The Mother’s apparent disclosure may or may not have been real. There is no evidence as to who the alleged abuser may have been. There is evidence that the Mother told her psychologist of having engaged in sexualised behaviour with a female teenaged neighbour, which she did not perceive as a form of sexual abuse.[27]
[27] Exhibit 1 at F6
However, apart form that, there is no credible evidence of any sexual abuse at any time, certainly not any that would preclude the maternal grandparents from acting as supervisors of the Mother’s time with her two little boys.
Clearly, there must be continuing supervision and, in fairness to the Mother, she is not suggesting otherwise. There must also be some restrictions on the Mother’s behaviour, which would include a restraint on consuming alcohol when the children are in her care, a restraint on any overdose of medication to herself and a requirement not to administer medication to the children without consulting the Father.
What will be more onerous on the Mother will be a restraint on her driving a motor car with the children as passengers. That will clearly be inconvenient, as her mother does not drive, and her father will not always be available, due to work commitments. However, the children’s safety must be paramount.
I consider that it is in the children’s best interests to impose a condition on the orders that the mother must continue to attend regular medical, psychiatric and psychological appointments, take the medication that is prescribed and comply with any treatment program. The Court does have the power to order that a party attend upon a psychiatrist and undergo treatment as a condition of a parenting order (L v T[28]) at [51].
[28] (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699
In my view, the maternal grandparents are suitable supervisors, noting that at times the grandfather may not be available because of work commitments. The children already have the benefit of spending substantial time with their father and their paternal grandparents. An increase in the time with the Mother, with the maternal grandparents in attendance, would appear to be in the children’s best interests. The evidence appears to be that the children have a good relationship with the maternal grandparents (s.60CC(3)(b)). There is ample authority that it is of benefit to children to spend time with extended family, particularly grandparents (Bright & Bright v Bright & Mackley[29]):
It is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.[30]
[29] (1995) FLC 92-570
[30] (1995) FLC 92-570 per Treyvaud J at 81,658
The maternal grandparents’ proposal for the children to be at their home with the Mother for the Friday night and the Saturday of the Jewish Sabbath is an attractive one, as it will allow the children to join with their mother and grandparents in the ritual and family time that forms part of the Sabbath. The grandfather will presumably not be at work on the Saturday, and the children will have the stability and security of being part of an extended family on the Friday and Saturday. They will be able to participate in the rich cultural heritage that the grandparents’ Jewish faith provides.
This seems to be an ideal way for the children to spend overnight time in the company of their mother for a longer period than just one day. However, it would be appropriate for the children to be returned to their father and paternal grandparents on the Sunday morning, rather than the Sunday evening. They will be with their father on
Father’s Day, at least from 9:00am. They will be with their mother on Mother’s Day.
I am not satisfied that equal shared parental responsibility is appropriate at this stage. The parents are not communicating very well and they have different ideas about immunisation and homeopathy. As the children will be spending the greater part of the time with the Father, it seems to be more appropriate that he should have parental responsibility on an interim basis. The matter will be reconsidered at a final hearing.
The parents must not use physical chastisement on the children. They should make every effort to speak well of each other and respect the fact that the other one is a parent of their children. It is not in the children’s best interests for their parents to speak ill of each other.
Clearly, they must keep each other informed of such things as current telephone numbers. I note that the Mother has given affidavit evidence of telephoning the Father about taking one of the children to hospital, and properly so.
The Court will make orders accordingly.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 August 2010
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