Harris and Bradley & Anor

[2009] FamCA 1182

FAMILY COURT OF AUSTRALIA

HARRIS & BRADLEY AND ANOR [2009] FamCA 1182

FAMILY LAW – PRACTICE AND PROCEDURE – first day of trial – case management – where the parties have failed to comply with previous orders – extension of time granted to the father to comply – where the failure has prevented the Court having the benefit of an updated family report

FAMILY LAW – CHILDREN – interim proceedings – with whom a child lives – best interests – where the presumption of equal shared parental responsibility does not apply – where the father has not produced a psychiatric report – where the mother’s psychiatric report raises serious issues about the need to protect the children – pending final judgment children are to live with the maternal grandmother who will have sole parental responsibility for the children

Family Law Act 1975 (Cth) ss 60B & 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT MATERNAL GRANDMOTHER: Ms Harris

RESPONDENT MOTHER: Ms Bradley

RESPONDENT FATHER: Mr James

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADF 905 of 2003

DATE DELIVERED: 23 November 2009

PLACE DELIVERED:	Adelaide
PLACE HEARD:	Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT MATERNAL GRANDMOTHER: Ms R.A. Read

SOLICITOR FOR THE APPLICANT MATERNAL GRANDMOTEHR: Dixon Gallasch Pty Ltd

COUNSEL FOR THE RESPONDENT MOTHER: Ms P.R. Dixon

SOLICITOR FOR THE RESPONDENT MOTHER: Polly Dixon & Co

COUNSEL FOR THE RESPONDENT FATHER N/A

SOLICITOR FOR THE RESPONDENT FATHER: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms J.V. Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. The time is extended for the father to comply with paragraphs 1, 2 and 3 of the Order of 3 August 2009 for a further twenty-eight [28] days from today.

2. The Court makes no order in relation to interim time spent between the mother and the children pending the report from Mr M.

3. Upon the receipt of the psychiatric report of the father and the affidavit of the father, the Independent Children’s Lawyer is to make arrangements for Mr M to prepare an updated report concerning the children and that each of the parties attend upon Mr M and the applicant maternal grandmother is to arrange for the children to attend upon Mr M as arranged by the Independent Children’s Lawyer for the finalisation of his report PROVIDED THAT, if the father does not comply with the orders made this day extending the time for the reports to be filed, Mr M is to proceed with the interviews and report in any event.

4. The Independent Children’s Lawyer has permission to release the reports of Mr M and the affidavits filed by the parties to such persons as the Independent Children’s Lawyer may determine.

5. Leave is given to the other parties’ lawyers to release the psychiatric reports and report of Mr M (already on file) to any psychiatrist in the preparation of the reports for these proceedings PROVIDED THAT the solicitors inform all other parties of the release of such documents within seven [7] days of it occurring.

6. The applicant grandmother pay the hearing fee within twenty-eight [28] days unless a waiver of the fee is obtained beforehand.

7. In the event that the hearing fee is not waived or paid within twenty-eight [28] days the case be listed before the Docket Registrar.

8. The matter is adjourned to 19 April 2010 at 9.15 am before the Honourable Justice Dawe for further consideration of compliance and directions to prepare the matter for a conclusion of hearing.

9. Pending the final judgment in this matter the children J born on … November 1999, B born … August 2000 and T born … January 2003 live with the maternal grandmother and that she have sole responsibility for the children.

IT IS NOTED that publication of this judgment under the pseudonym Harris & Bradley & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 905 of 2003

MS HARRIS

Applicant Maternal Grandmother

And

MS BRADLEY

Respondent Mother

and

MR JAMES

Respondent Father

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim application in proceedings concerning the welfare of the children, J, who was born in November 1999, B, who was born in August 2000, and T, who was born in January 2003.  It was meant to be a first day of trial, because I made orders on 3 August 2009, with a view to preparing the matter for a first day of trial.  Those orders were not complied with, but I have proceeded to have the first day hearing today in any event.

2. The orders were not complied with by the father.  He failed to obey any of the orders of the Court made on 3 August 2009.  He says, before the Court today, at the bar table, that this was his lawyer’s fault.  He said he saw his lawyer, was expecting them to do something, and expecting them to be here today, but they are not.

3. When I stood the matter down, he returned to the Court and said that the lawyer’s excuse for failing to do anything was that they did not have a proper note by way of written record, and that he was then told to ask for an adjournment today.

4. It is obvious that this matter will need to be adjourned in any event.  For that reason, the father will be given one more opportunity to comply with the orders of the Court.  I extend the time for the father to comply with paragraphs 1, 2 and 3 of my order of 3 August 2009, for a further 28 days from today.

5. In relation to the matters which otherwise are significant, the mother was also directed to file and serve a detailed report of her psychiatrist within 28 days of 3 August.  That date would have expired, therefore, at the end of August 2009.  The mother did not file the affidavit annexing her psychiatrist’s report until 27 October 2009.  Her affidavit setting out what matters relevant to the children’s welfare was filed on 18 September 2009.

6. As I indicated, there’s been no compliance whatsoever by the father.  This prevented the Independent Children’s Lawyer for arranging Mr M to prepare the updated report, which was referred to in paragraph 4 of my orders of 3 August 2009, which said:

   “Upon receipt of the psychiatric reports and the ordered affidavits of the parties, the Independent Children’s Lawyer to make arrangements for Mr [M] to prepare an updated report concerning the children, and that each of the parties attend upon Mr [M] as arranged and cooperate with him in the finalisation of his report.”

7. The failure of the mother and father to comply with the orders within the specified time thus prevented the Independent Children’s Lawyer from complying with that order.  It should also be noted that the applicant grandmother did not comply with that order either.  Her affidavit purporting to comply with that order was not filed until 11 November 2009.  Various reasons were given for her failure to comply over such a long period of time.

8. I am now in the situation where I am being asked to reconsider the matter, notwithstanding that the parties failed to comply with my orders, and thus have prevented the Court having the benefit of the updated report of Mr M.  I say updated report of Mr M, because Mr M has provided reports to the Court which are on file, attached to affidavits, in May 2006, and November and December 2007.

9. Those reports are obviously considerably out of date.  The most significant factor, however, considering the reports of Mr M, and in particular, the report to which the mother’s counsel refers is the report in which Mr M tentatively recommends that there be a period of supervised time at a contact centre between the mother and the children.  The most significant factor which relates to that tentative recommendation by Mr M is that the Court has now received the most recent report of the mother’s psychiatrist, which is dated 6 October 2009, together with the limited amount of information provided by the mother in her affidavit of 18 September 2009.  When I say “limited”, I refer to paragraph 18 of the mother’s affidavit, filed on 18 September 2009.

10. The Court is not yet in a position to test all of the evidence presented by the parties in the sense that it is heard orally, and subject to cross-examination, which would enable the Court to draw clear conclusions about the factual background to the matters which significantly impact upon what is in the best interests of the children.  However, the Court must take into account the affidavit of the mother’s consultant psychiatrist, filed on behalf of the mother dated 6 October 2009.  When that report is read, there are significant matters which need to be taken into account.

11. The psychiatrist reports refers to the history of the matter, and then notes what the psychiatrist refers to as several striking features of the mother’s presentation.  He refers to her pervasive distrust and suspiciousness of others, and her strong sense that others are maliciously against her.  He refers to the mother being an outpatient at clinic regularly, however, on page 4 he says:

    “However, she did not follow the agreed strategy to address those problems, which resulted in her facing the same problems over and over again.  This reinforced her sense of distrust and suspiciousness.”

12. He then refers to an inconsistency in the mother’s history and her behaviours, and refers to the mother’s request for a referral earlier this year in 2009 from her general practitioner to the IVF clinic to get pregnant.  Instead, she has told the psychiatrist that she was getting treatment for a bladder infection.  The psychiatrist also refers to an incident which he describes as being in mid 2009, when the mother:

    “…ran away from her home without informing anyone.”

    And I continue the quotation:

    “…She was listed as a missing person by police for two weeks.  Upon returning home, she told me that she went to a hospital to get help, but was unable to provide any information about the name of the hospital and what treatment was received.  Up to this moment, she still hasn’t disclosed this information to me, her case manager, or even her husband.”

13. That material seems to be referred to in the mother’s affidavit (if it is the same incident) in paragraph 18, as:

    “Recently it was necessary for me to spend some time away from home. What happened was that on 3 August 2009, I received a telephone call from Centrelink advising me that I was ineligible to receive the disability support pension, because [Mr N] and my combined income was over the threshold.  I was very upset and needed to get away.  I contacted [Mr N] and stayed with friends.  [L] was cared for by [Mr N], and I took a few days and returned home feeling better.

    (L being the child by the mother and her present partner)

14. The Independent Children’s Lawyer has drawn attention to the inconsistencies that might be, or the lack of clarity of the information that might be, gained from the mother’s affidavit about this incident.

15. The mental examination referred to by the psychiatrist commences on page 6, and continues through to the end of the report.  It refers to the family assessment report of 26 May 2006.  At the end of the psychiatrist’s report it says:

    “At this stage, I can only say that [the mother] has not received any meaningful therapeutic treatment to address her underlying dysfunctional behaviour and emotional problems.  Because of her avoidance, I was only able to provide her limited supports.  The prognosis remains very guarded.  However, I do strongly support [the mother] to have supervised access to her children.  This would certainly encourage [the mother] to engage with her treating team, and reduce one of her significant psychological stresses.”

16. The Court is now faced with a decision that needs to be made as to what should happen, pending the further preparation of any further report of Mr M, and pending the conclusion of the trial in this matter.  As can be seen from the previous orders, steps were put in place by the Court to assist the Independent Children’s Lawyer in obtaining an updated report from Mr M, but the parties did not comply with the Court orders, and this has not been possible.

17. The Court is obliged, by the provisions of Part VII of the Family Law Act1975 (Cth), to consider the factors referred to therein. I have previously said in this matter, this is not a matter in which the presumption of equal shared parenting between the mother and father applies. Quite the contrary, the history of the matter indicates that this is a matter where, by way of interim hearing, such a presumption would clearly not be appropriate. The presumption in this matter leans heavily towards the grandmother’s role in caring for the children, as set out in the history of the matter.

18. The provisions, therefore, that require the Court to consider significant or substantial time for either the mother or the father, are not applicable. The Court is, however, required by the provisions of section 60B and section 60CC to consider the best interests of the children as the paramount consideration, and follow the applicable portions of the Full Court decision of Goode & Goode (2006) FLC 93-286.

19. In this matter, the primary considerations are the most significant considerations, namely, the benefit to the children of having a meaningful relationship with each of the child’s parents, and the need to protect the children from harm, albeit psychological or emotional harm.

20. The time spent in relation to the father is not capable of being considered at this stage firstly, because of the history of the matter and the limited role the father has played in the care of the children, and the concern the Court has about the need for the father to comply with the orders about producing a psychiatric report (bearing in mind his conviction in relation to the arson perpetrated in relation to the grandmother’s home, and his suitability, emotionally and psychologically, to have time with the children).

21. In relation to the mother, the report of her psychiatrist raises serious issues about the need to protect the children from the emotional or psychological harm which might occur if the children were exposed to the mother, or required to spend time with the mother, be it under supervision or otherwise. 

22. It is the view of the Court, therefore, that it is in the best interests of the children that a decision not be made in relation to the children spending time with the mother by way of interim order, until such time as the Court has available to it at least further considered information by way of a report from Mr M.  That can only take place appropriately when the father has had an opportunity to put the material to Mr M, concerning his psychiatric health, and his proposals in relation to the children.

23. However, the father is warned that he has been given an opportunity to do that.  If he fails to do so in the time I am about to provide, then Mr M should proceed with his report in any event, effecting, as it does, the rights of the grandmother, but more importantly, the interests of the children concerned.

24. I have considered the material contained in Mr M’s earlier reports to which I have referred and the history of the matter.  In particular the three children have been residing with the maternal grandmother for years, at the behest of the Department of Families SA.  The affidavit material recently filed by the grandmother indicates the steps she has taken in relation to their day-to-day attendance at school and other activities. 

25. Taking into account the best interests of the children, the question of the orders that need to be made in relation to the children’s residence pending the final conclusion to this matter, the security and stability of the children, and the arrangements which have existed is one which makes it appropriate until the final judgment in this matter for the children to live with the maternal grandmother and for her to have sole parental responsibility concerning the children.

26. The obvious reason in relation to parental responsibility in favour or the maternal grandmother is not only the time that she has been undertaking that role, but also the difficulties, on the face of the documents already before the Court, in making any cooperative communication between the grandmother, the mother of the children, and the father of the two older children.  (I understand the father of the youngest child is deceased).

27. In those circumstances, it is in the best interests of the children that that interim order be made.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 December 2009