Henry and Oden and Ors - [2019] FamCA 744

FAMILY COURT OF AUSTRALIA

HENRY & ODEN AND ORS

[2019] FamCA 744

FAMILY LAW – CHILDREN – interim relocation to Western Australia – mother with history of mental health challenges – child welfare orders in existence but Department consents to child living with maternal grandmother in Western Australia on an interim basis.

Family Law Act 1975 (Cth) ss 60CC, 69ZK

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT:

Ms Henry

FIRST RESPONDENT:

Ms Oden

SECOND RESPONDENT:

Mr Krome

INTERVENER:

Department of Child Safety, Youth and Women

FILE NUMBER:

BRC

2450

2018

DATE DELIVERED:

24 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

20 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr M Donnelly
My Legal Crunch

COUNSEL FOR THE FIRST RESPONDENT:

Mr R Haddrick

SOLICITOR FOR THE FIRST RESPONDENT:

Sambanis Family Law

NO APPEARANCE BY THE SECOND RESPONDENT

COUNSEL FOR THE INTERVENER:

Mr G Shoebridge

INDEPENDENT CHILDREN’S LAWYER:

Ms R Mannering
Northside Family Law Centre

Orders

UPON FILING BY THE INTERVENER OF ITS CONSENT PURSUANT TO SECTION 69ZK(1)(b) OF THE FAMILY LAW ACT 1975:

THE COURT ORDERS UNTIL FURTHER ORDER:

That all previous parenting orders are discharged.
That the child, X born … 2011 (“the child”) live with the Applicant maternal grandmother MS HENRY in Western Australia.
That the maternal grandmother have sole parental responsibility for the child.
That the First Respondent mother MS ODEN complete a comprehensive psychiatric assessment with a psychiatrist, with the psychiatrist to have access to:
(a)this Order;
(b)the mother’s historical medical records;
(c)the psychiatric assessment prepared by Psychiatrist Dr B filed on 25 June 2019;
(d)the family report prepared by Dr C filed on 13 June 2019; and
(e)the Reasons for Judgment delivered by Justice Bauman on 24 September 2019,
and that the mother follow all recommendations of the psychiatrist.
That once the mother has completed the comprehensive psychiatric assessment with a psychiatrist as outlined in Order 4 hereof, and committed to following the recommendations of the psychiatrist, the mother shall spend time with the child during the Western Australian school holidays periods, with such time to be supervised by a suitably qualified professional in a professional setting, and such time not to occur in reasonable proximity of the maternal grandmother’s home environment.
That the mother shall be permitted to communicate with the child by telephone each Sunday between 6.30pm and 7.00pm (Western Australia time) and the parties note that given the age of the child the call duration may be less than thirty (30) minutes, with all telephone calls to be recorded.
That the maternal grandmother shall initiate the telephone call at the nominated time to the mobile phone of the mother and shall ensure that:
(a)the mobile phone being used has sufficient power, data and credit;
(b)the child is placed in a quiet room free from distractions; and
(c)the child is encouraged to speak with the mother.
That the maternal grandmother shall arrange for the child to be engaged with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 744
Decision Date: 24 September 2019

CaseChat Overview and Summary

This matter came before Baumann J in the Family Court of Australia concerning parenting orders for a child, X, born in 2011. The primary dispute involved the living arrangements and parental responsibility for the child, with the applicant being the maternal grandmother, Ms Henry, and the first respondent being the mother, Ms Oden. An intervener also consented to orders pursuant to section 69ZK(1)(b) of the *Family Law Act 1975*.

The court was required to determine the appropriate parenting orders for the child, including where the child would live, who would have parental responsibility, and the nature and extent of contact between the child and the mother. Additionally, the court needed to consider the mother's psychiatric condition and its implications for her parenting capacity, as well as the need for ongoing assessments and support for both the child and the mother. The court also had to address communication protocols between the parties and restrictions on the mother's conduct.

In its reasoning, the court discharged all previous parenting orders and made new orders based on the best interests of the child. The child was ordered to live with the maternal grandmother, who was granted sole parental responsibility. The mother was directed to undergo a comprehensive psychiatric assessment and to follow all recommendations made by the psychiatrist. Supervised time with the child during school holidays was to commence only after the mother completed her assessment and committed to treatment, with such time to be supervised by a qualified professional and not in close proximity to the grandmother's home. The court also established specific communication arrangements, including recorded telephone calls and a prohibition on the mother attending the child's school or contacting the grandmother or her third-party providers. Further assessments of the child's academic, intellectual, and social-emotional development were ordered, along with enrolment in a specific school and medical and dental assessments.

The court ordered that the application be adjourned for further directions, including submissions regarding supervised time during the upcoming school holidays. The maternal grandmother was granted leave to appear by telephone at the next directions hearing.

Orders

Orders of the court

UPON FILING BY THE INTERVENER OF ITS CONSENT PURSUANT TO SECTION 69ZK(1)(b) OF THE FAMILY LAW ACT 1975:

THE COURT ORDERS UNTIL FURTHER ORDER:

That all previous parenting orders are discharged.

That the child, X born … 2011 (“the child”) live with the Applicant maternal grandmother MS HENRY in Western Australia.

That the maternal grandmother have sole parental responsibility for the child.

That the First Respondent mother MS ODEN complete a comprehensive psychiatric assessment with a psychiatrist, with the psychiatrist to have access to:

(a) this Order;

(b) the mother’s historical medical records;

(d) the family report prepared by Dr C filed on 13 June 2019; and

(e) the Reasons for Judgment delivered by Justice Bauman on 24 September 2019,

and that the mother follow all recommendations of the psychiatrist.

That once the mother has completed the comprehensive psychiatric assessment with a psychiatrist as outlined in Order 4 hereof, and committed to following the recommendations of the psychiatrist, the mother shall spend time with the child during the Western Australian school holidays periods, with such time to be supervised by a suitably qualified professional in a professional setting, and such time not to occur in reasonable proximity of the maternal grandmother’s home environment.

That the mother shall be permitted to communicate with the child by telephone each Sunday between 6.30pm and 7.00pm (Western Australia time) and the parties note that given the age of the child the call duration may be less than thirty (30) minutes, with all telephone calls to be recorded.

That the maternal grandmother shall initiate the telephone call at the nominated time to the mobile phone of the mother and shall ensure that:

(a) the mobile phone being used has sufficient power, data and credit;

(b) the child is placed in a quiet room free from distractions; and

That the maternal grandmother shall arrange for the child to be engaged with a suitably qualified psychologist to provide support to the child and to monitor her behaviour, particularly after time with the mother.

That the maternal grandmother shall have leave to provide to the said psychologist a copy of the report of Dr C filed 13 June 2019 and a copy of the Reasons for Judgment delivered by Justice Baumann on 24 September 2019.

10.

That the maternal grandmother arrange for a comprehensive assessment conducted by a suitably qualified professional of the child’s academic ability, intellectual functioning and social and emotional development and act as soon as practicable on all referrals provided for allied health services.

11.

That the maternal grandmother arrange for the child to be enrolled at St Joseph’s School, Town E Western Australia.

12.

That the maternal grandmother arrange for the child to have a full medical and dental assessment as soon as possible.

13.

That the mother be restrained and an injunction issue prohibiting the mother from:

(a) attending the school the child is enrolled in;

(b) contacting the maternal grandmother except as provided for in these Orders;

(d) contacting any third party health or education provider including any doctors that the child might be referred to or be required to attend upon.

14.

That no party discuss these proceedings with the child.

15.

That the maternal grandmother shall advise the mother as soon as practicable by email in the event that the child is involved in a medical emergency or suffers a serious medical condition or accident.

16.

That the maternal grandmother and the mother only communicate in relation to the child by way of SMS text message or email in matters of an emergent nature.

17.

That the maternal grandmother shall provide to the mother on a monthly basis by way of email an update regarding the health, wellbeing and educational progress and development of the child, including providing copies of any medical reports, assessments and referrals.

18.

That the mother and maternal grandmother shall keep each other informed of their current email address, mobile phone number (for SMS text message purposes) and advise of any change immediately upon such change.

19.

That the Independent Children’s Lawyer have leave to provide a copy of the Reasons for Judgment delivered by Justice Baumann on 24 September 2019 to any health professional otherwise treating the mother, and upon a written request by that health professional to the Independent Children’s Lawyer, the Independent Children’s Lawyer shall have leave to provide a copy of the reports of Dr B and Dr C

20.

That the Application be otherwise adjourned for further directions (including submissions as to any prescribed arrangements for the child to spend supervised time with the mother during the Western Australia end of term four (4) school holidays) to 9.30am on 1 November 2019 in the Family Court of Australia at Brisbane.

21.

That the maternal grandmother have leave to appear by telephone 1 November 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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