Haroldson and Haroldson
[2017] FamCA 1073
•21 December 2017
FAMILY COURT OF AUSTRALIA
| HAROLDSON & HAROLDSON | [2017] FamCA 1073 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders –Where the mother seeks an increase of time with the child – Where the father is opposed – Consideration of the best interests of the child and whether the mother poses a physical or psychological risk to the child – Order made for an increase in the mother’s time with the child. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| Deiter& Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Haroldson |
| RESPONDENT: | Mr Haroldson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 905 | of | 2011 |
| DATE DELIVERED: | 21 December 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 11 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Dillon |
| SOLICITOR FOR THE RESPONDENT: | North East Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ross |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That all previous parenting orders are suspended.
That B born … 2005 (“the child”) live with the father.
That the child spend time with the mother as follows:-
(a)During term time:-
(i)from the conclusion of school Friday to the commencement of school the following Monday and each alternate week thereafter, commencing on the first weekend following the conclusion of the Christmas 2017/2018 school holidays;
(ii)from the conclusion of school Thursday to the commencement of school the following Friday and each alternate week thereafter, commencing in the second week of the first school term;
(b) During the 2017/2018 Christmas school holidays:-
(i)from 10 am to 7 pm on 24 December 2017;
(ii)from 10 am to 7 pm on 30 December 2017;
(iii)from 10 am to 7 pm on 7 January 2018;
(iv)from 6 pm Sunday 14 January 2018 to 10 am Tuesday 16 January 2018;
(v)from 10 am 25 January 2018 to 10 am 28 January 2018.
(c) At such other times as may be agreed between the parties.
That all handovers not taking place at the child’s school to occur at the father’s home on the basis that the father remain in the home and the mother to remain in her motor vehicle or at such other place and upon such other terms and conditions as the parties may agree.
That the parties facilitate any request by the child to telephone either the mother or the father when in the other’s care.
That the mother be restrained and an injunction is granted restraining her from opening, retaining or otherwise operating any Facebook account or other social media account in the name of the child or from referring to the parties or the child in the proceedings or details of the litigation on any social media site.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haroldson & Haroldson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 905 of 2011
| Ms Haroldson |
Applicant
And
| Mr Haroldson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Haroldson (“the mother”) and Mr Haroldson (“the father”) are the parents of B born in 2005 (“the child”).
The parties commenced their cohabitation in June 1997, were married in 2003 and finally separated in early 2010.
The parties had separated for varying periods of time prior to their final separation.
The child was aged four years and six months as at the date of their final separation. Whilst it is a matter of some contention between the parties but of less relevance today, it is likely that if the father did not provide the bulk of the parenting of the child then and at the very most the parties shared the parenting equally.
Following separation the parties experienced a high level of conflict and litigation was required to secure an ongoing parenting arrangement.
In March 2011 the father commenced cohabitation with Ms C.
On 6 February 2012 the parties reached a comprehensive agreement in respect of the ongoing parenting arrangements for the child together with property settlement. The parties agreed that they would have equal shared parental responsibility and that the child’s time would be shared equally between them both in respect of the period during school terms but also school holidays and special occasions.
The parenting arrangements agreed between the parties appeared settled until April 2014. The father received information from the child’s school, the child and a member of the mother’s family that the mother had been arrested. There were also concerns as to the mother’s ongoing mental health and by Initiating Application filed 30 April 2014 the father sought orders that would suspend the operation of the consent orders of 6 February 2012, that the child would live with him and spend time with the mother as may be agreed. The mother’s Response filed 15 August 2014 sought the dismissal of the father’s application and a return to the consent orders.
Her affidavit filed in support of the application admits that she was arrested in April 2014 in circumstances where the child was left at the mother’s home and unattended. She admits that she was suicidal, was under a lot of pressure and felt as if she was having a breakdown. Whilst not expressing any expertise, she records that she was engaged in some therapeutic assistance to deal with a history of sexual abuse.
She was detained in a psychiatric hospital for a period of two weeks, was remanded to a women’s prison and was granted home detention bail in June 2014. There were ongoing conditions of bail.
Thereafter the proceedings in respect of the child have been marred by mistrust. The mother considers that the father used her breakdown, mental illness and arrest as an opportunity to suspend the consent orders and take on the child’s primary care. The father considers that the mother’s mental health was and remains unstable, that there was uncertainty as to the circumstances surrounding the mother’s criminal proceedings and that until the criminal litigation has been concluded and the mother’s fate known, she presented a significant risk to the child.
The proceedings were carefully monitored by Judge Cole in the Federal Circuit Court. The file reflects considerable Court attendance and reliance and recourse was had to family reports prepared in order to assist the Court in the ongoing parenting arrangements.
The approach of the family consultant in her report dated 6 May 2015 contained recommendations that the mother’s time with the child should proceed with caution.
It was recommended that the child continue to live with her father but spend regular but limited unsupervised time with the mother.
It was considered important that the mother’s treating psychiatrist Dr D conduct a psychiatric review of the mother’s mental health taking into account her current presentation and information from earlier mental health clinicians.
Subject to the psychiatric report indicating that the mother did not present as a risk and that she demonstrated stable mental health, then the parties could work towards resuming an equal time arrangement.
Orders were made by Judge Cole on 20 May 2015 that reflected the recommendations and listed the matter for trial in December 2015 on the expectation that the criminal proceedings would be heard and determined in October 2015.
The notation to his Honour’s order contemplates the Independent Children’s Lawyer (“ICL”) obtaining a copy of Dr D’s report likely to be prepared for the criminal proceedings.
The mother’s criminal trial was relisted to August 2016. The anticipated trial before his Honour was vacated and relisted for hearing in December 2016.
By consent orders made 7 December 2015, the mother’s time with the child was the subject of substantial variation. The orders contemplated overnight time which was conditional on the time being taken in the home of the mother’s sister, with the sister remaining in the home at all times.
On 30 August 2016 the proceedings were further adjourned to take into account the mother’s criminal trial now being listed for hearing on 16 February 2017.
The orders provided for the child to only spend supervised time with the mother and for the proceedings to be transferred to the Family Court of Australia.
The matter was transferred into the trial list and has been given a first day hearing in February 2018 with the reasonable expectation of a trial date in late June or early July of that year.
THE MOTHER’S APPLICATION
The mother is now a self-represented litigant. By Application in a Case filed 31 October 2017 she seeks the following order:-
(1)That the child live with the mother without supervision. I am seeking urgent application as I have not seen the child since May 2017.
The application and affidavit in support follows the mother’s acquittal of the charge of attempted arson in 2014.
The mother’s affidavit provides information of her current circumstances. She is studying at university and considers that she is likely to be offered a position to for further study in 2018.
She resides in permanent accommodation in Suburb E, and whilst admitting that in 2014 she suffered considerable mental health issues, those difficulties are now behind her and her life is in order.
The catalyst for the application appears to be an ongoing difficulty experienced by the mother in obtaining the services of a supervisor, a perceived reluctance on the part of the father to make the child readily available and a concern that the truncated relationship with the child has had a detrimental effect on the child’s grades and school participation.
Allegations are also made in respect of the father’s partner and the environment that the father and his partner present for the child.
The father opposes any change to the current orders and whilst he acknowledges that the mother has had difficulties in finding a supervisor, subject to that he has no opposition to the child spending time with the mother.
Whilst the father appears litigation weary and is prepared to consider a parenting resolution, he rejects the mother’s position that there should be any dramatic change to the current orders between now and the time of trial.
In Marvel v Marvel (No. 2) (2010) 43 Fam LR 348 the Full Court considered the caution with which interim applications should be considered:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[122] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter& Deiter [2011] FamCAFC 82 the Court considered the situation where the issue of risk was required to be assessed:-
[61]…Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Eaby & Speelman (2015) FLC 93-654 the Full Court said:-
[18]…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Keats & Keats [2016] FamCAFC 156 the Full Court said:-
[9]…the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
THE LAW
The principles applicable to parenting and interim proceedings were considered by the Full Court in Goode and Goode (2006) FLC 93-286 and reaffirmed in MRR v GRR [2010] HCA 4.
I approach the matter by a consideration of s 60CA of the Family Law Act 1975 (Cth) (“the Act”) namely that the best interests of a child are the paramount consideration and are to be considered by the application of the objects of s 60B(1).
I bring to account the primary considerations and the additional considerations in respect of matters as set out in s 60CC(2) and (3) in order to determine what are the best interests of the child and how they will be best served.
I am mindful of the directions contained in s 60CC(2A) and have regard to the issues raised by each of the parties, but in particular the father that a cautious approach should be adopted in circumstances where there may well be a challenge to the mother’s mental health.
THE CRIMINAL PROCEEDINGS
The mother was charged with the following offence:-
[The mother] on […] 2014 at [Suburb F], knowing that she had no lawful authority to do so, attempted to damage by fire a house, the property of the South Australian Housing Trust and the cost of the damage to the said house if the offence had been completed would have exceeded $30,000.
The undisputed facts are that the mother attended the home of a woman who had been in a sexual relationship with the mother’s friend and former lover.
The victim heard noises outside of her premises, considered that there may be an intruder and called the police.
The mother was found hiding behind a sheet hanging on a clothesline. She was dressed in dark clothing, in possession of gardening gloves, a head torch and a cigarette lighter. Against the rear wall of the unit there was a two litre bottle filled with petrol. A block of wood was found under the victim’s car. Holes had been drilled into it. The carport smelled of petrol.
The mother’s motor vehicle had been parked some distance from the victim’s premises. The police discovered a jerry can of petrol, 10 canisters of butane with lids on, the mother’s mobile phone plugged into the vehicle’s telephone charger and four lids for the butane canisters.
The mother’s evidence was that she wanted to see her friend and believed that he was staying at the home of the victim. While there she decided to commit suicide by setting fire to herself and specifically denied any assertion that she intended to commit the act of arson and set fire to the victim’s premises. The prosecution case was that the mother’s actions were motivated by jealousy and but for the interruption by the police, she would have carried out her undertaking.
The father relies upon the assessment of the trial Judge that the mother presented as a “most unsatisfactory witness”. She was evasive and verbose, claiming to be unable recall many matters relying on what she described as the “unreal and dreamlike quality of the occasion”.
The findings of the trial Judge were unequivocal. He found beyond reasonable doubt that the mother was jealous of her friend’s relationship with the victim and that she had planned to set fire to her unit. Her actions were deliberate in terms of the preparation.
The trial Judge was obliged to consider whether the accused’s actions went beyond the stage of preparation to commit the crime, or actually attempting to commit the crime.
The trial Judge was not able to be satisfied beyond reasonable doubt of the mother’s mental state that would have enabled a finding that her actions had gone beyond the preparatory stage to the executory stage. The accused’s psychiatric condition as considered by the evidence of Dr D was influential on the final decision.
THE MOTHER’S MENTAL HEALTH
The mother attaches various reports from her treating psychologist and psychiatrist as annexures to her affidavit filed 31 October 2017.
The mother’s clinical psychologist authored a report of 22 September 2017. She was first referred for therapeutic assistance on 1 March 2016 and the mother has been seen for five sessions between 22 May and 22 September 2017. The attendance by the mother is recorded as follows:-
[The mother] has been a reliable attendee, cooperative and motivated to receive psychological assistance as necessary. [The mother] reported having experienced a number of significant stressors in recent years, including ongoing Family Court and custody issues, charges against her ex-husband for sexual assault (current), charges against herself for attempted arson (found not guilty), the passing away of three close family members, ongoing Workcover case (recently finalized) and subsequent unemployment due to back injury. [The mother] reported she has been completing [studies] this year with the aim to enrol in a Bachelor [degree]to commence in 2018…
The summary of the mother’s presentation is as follows:-
…[The mother] commenced therapy at [G Group] in 2016, which she continues to attend. She has previously experienced symptoms of depression and anxiety in relation to major life stressors. I have not been able to confirm a diagnosis of Borderline Personality Disorder (BPD). She is currently experiencing chronic pain and takes pain medication occasionally as required. Her residual symptoms of Post-traumatic Stress do not impact on her functioning, she is able to attend to her studies and perform to a high standard. She is also paying off a mortgage and bills and looking after her house with the assistance of friends at times due to physical pain and restriction. She has completed the [H Course], a post-separation support program, of her own volition. A referral was made for Community Dialectical Behaviour Therapy (DBT) last year, for which I do not believe she is eligible as she does not meet the full diagnostic criteria for Borderline Personality Disorder based on her screening results.
Reassessment on 21/8/17 using the DASS 21 indicated scores were in the normal range on all three scales, Depression, Anxiety and Stress. She has presented in a consistent manner across her sessions. I do not believe [the mother] is at risk of harm to herself or others. She will continue to attend sessions with myself on a regular basis to address residual symptoms of posttraumatic stress and supportive counselling for court matters.
The most recent psychiatric report is dated 31 January 2017 and was prepared by Dr D to assist in the mother’s criminal trial.
The psychiatrist considered that at the time of the offence the mother was suffering from an Adjustment Disorder and as a result “there was such a disturbance of thinking that she was not mentally competent to commit the offence”.
At the time of presentation to Dr D, he had the advantage of medical notes from the J Hospital of 27-29 March 2007, notes from K Hospital, J Hospital and SAPOL Mental Health Assistance Report.
It is to be remembered that Dr D saw the mother relatively proximate to the proceedings in September 2014 and then on 20 December 2016.
It was his opinion that on both occasions the mother presented with a normal mental state examination. His summary is as follows:-
…Emotionally she became tearful. She did not describe perceptual abnormality. Although there was poor scholastic attainment, with difficulty reading and writing, she indicated satisfactory completion of her … subjects. This suggests normal intelligence. Whilst acknowledging episodes of mental distress, her description of hospital input was not congruent with the hospital’s actions or the accompanying medical records, and suggests she either minimizes or has no memory of the degree of mental impairment at the time.
Importantly, the psychiatrist did not consider that the mother was suffering from any adjustment disorder and did not present with any ongoing mental impairment or mental illness.
PARENTING CONSIDERATIONS
The mother’s application came on for hearing on 30 November 2017. She appeared in person. The father and the ICL were represented by counsel.
The position of counsel for the ICL’s was that the mother’s application was opposed, principally because the ICL wanted the opportunity to further consider the report of Dr D and whether there should be any update psychiatric assessment of the mother undertaken.
The proceedings were adjourned to 11 December 2017 to enable the ICL to consider the attitude to be adopted in respect of the mother’s application and to make such further enquiries as may be considered appropriate. It was suggested that a phone call to the mother’s psychiatrist (and psychologist) might well assist in galvanizing the position to be adopted by the ICL.
On the adjourned date neither the father nor the ICL had taken the opportunity to advance their understanding as to whether the mother presented as a risk in respect of her mental health.
The Court was provided with no assistance by the ICL and the submissions made by counsel for the ICL clearly indicated that no further enquiries had been made.
The father maintained his opposition to the mother’s application, but again it was obvious that no action had been taken to ascertain whether further psychiatric assessment was warranted.
The history of this matter demonstrates that it is important to the child to maintain a relationship with the mother. The parties initially considered that the child’s best interests would be served by equal time. That was interrupted by the mother’s actions which resulted in her being charged with the criminal offence of attempted arson.
Thereafter time spent between the mother and child has been problematic. Three years has now passed since the mother’s time was suspended initially and then the subject of restriction.
The reports of the family consultant were consistent with the child wishing to spend time with her mother.
Whilst the mother seeks a return to equal time, the child’s circumstances have now been the subject of different factors both in terms of her father’s home and her current age. It must be a matter for trial as to whether and to what extent the child would benefit from resuming an equal time arrangement between the parties.
I am satisfied that it is in the child’s best interests to resume an arrangement which will provide a greater degree of regularity for the child spending time with her mother.
The barrier is the consideration of whether the mother presents as a risk.
The psychiatric and psychological evidence as presented by the mother’s health professionals do not suggest that she is currently suffering from any mental health issues or that by reason of mental illness she presents as a risk to the child. Significant opportunity has been given for the issue to be the subject of consideration by the father and the ICL.
Whilst adopting a cautious approach, there is no evidence to support the contention that the mother’s time with the child should be the subject of supervision. The issue is the extent of the time rather than the terms and conditions that should attach to it.
I propose to make orders that provide for regular time between the mother and the child to take place without the need for supervision.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 December 2017.
Associate:
Date: 21 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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