HENSON & EDGAR
[2011] FMCAfam 347
•14 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENSON & EDGAR | [2011] FMCAfam 347 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – equal time – whether equal time with each parent in child’s best interests – substantial and significant time – whether in child’s best interests – whether reasonably practicable – mental health issues – independent psychiatric examination. PRACTICE & PROCEDURE – Independent Children’s Lawyer – whether child’s interests should be independently represented by a lawyer. PRACTICE & PROCEDURE – Observations on inappropriate interim orders. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 L v T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 |
| Applicant: | MR HENSON |
| Respondent: | MS EDGAR |
| File Number: | BRC 1270 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 April 2011 |
| Date of Last Submission: | 13 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 14 April 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Hall Payne Lawyers |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Walsh Halligan Douglas |
ORDERS UNTIL FURTHER ORDER
The interests of the child [Y] born [in] 2009 are to be independently represented by a lawyer and Legal Aid Queensland is requested to arrange such representation.
The parties are to forward to Legal Aid Queensland for the use of the Independent Children’s Lawyer when appointed copies of all applications, responses, affidavits and other relevant documents within seven (7) days.
The Registrar of the Court is to forward to Legal Aid Queensland a sealed copy of these Orders within seven (7) days.
The applicant father and the respondent mother are to have equal shared parental responsibility for the child [Y] born [in] 2009.
The mother will spend time with the child [Y] from 9:00 am on Wednesday until 9:00 am on Friday in each week upon the following conditions:
(a)The mother must reside at the home of the maternal grandmother MS J at [omitted] in the State of Queensland;
(b)The mother’s time with the child [Y] must be in the presence of either the maternal grandmother or the mother’s sister MS E;
(c)The mother must continue to accept treatment from Dr W and comply with all requirements to take prescribed medication;
(d)The mother must not administer to herself any illicit drug at any time; and
(e)The mother must submit herself to a psychiatric examination by a psychiatrist nominated by the Independent Children’s Lawyer at such time and place as the Independent Lawyer shall advise.
In addition to the times specified in Order (5) above, the mother is to spend time with the child [Y] on the same conditions as specified in Order (5) above on the following days and times:
(a)From 9:00 am to 4:00 pm on Mother’s Day;
(b)From 9:00 am to 4:00 pm on the mother’s birthday; and
(c)From 9:00 am to 12 noon on the child’s birthday.
The father will spend time with the child [Y] at all times other than those specified in Orders (5) and (6) above.
For the purpose of facilitating Order (5) above the mother and either the maternal grandmother or the mother’s sister Ms E must collect the child [Y] from the [F] Centre at the commencement of her time with the child on the Wednesday and return the child to the [F] Centre at the conclusion of her time with the child on the Friday.
For the purpose of facilitating Order (6) above if the mother’s time with the child falls on a day when the child would not normally be attending the [F] Centre then the mother in the company of either the maternal grandmother or the mother’s sister Ms E must collect the child from the residence of the father’s sister Ms R at the commencement of the time and return him to that same place at the conclusion of the time.
The parties are to attend a Child Dispute Conference with a family consultant of the Court under the provisions of s.11F of the Family Law Act 1975 and as provided by s.11C of the Act the conference is to be reportable.
This proceeding is to be consolidated with the application to which the mother is also the respondent in file number BRC 7370 of 2008.
The application is to be adjourned to Monday 20 June 2011 for further mention before Federal Magistrate Slack at 9:30 am.
IT IS NOTED that publication of this judgment under the pseudonym Henson & Edgar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1270 of 2011
| MR HENSON |
Applicant
And
| MS EDGAR |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders by the father of a little boy called [Y], who is only 17 months old. He was born [in] 2009 and, at the present time, he is living with his father. There are no current parenting orders.
Orders sought
In his Application, which was filed on 21st February 2011, the father seeks interim orders that:
a)The child should live with him;
b)That the mother spend time with the child, supervised by a family member, at times to be agreed by the parties;
c)That the orders should be made ex parte;
d)That the mother undergo random drug testing;
e)That the mother undergo assessment as to her mental functioning by a psychiatric agreed by the parties; and
f)Other orders as appropriate.
The father’s solicitor, Ms Lakey, told the Court that her client also sought an order that the child’s interests should be independently represented by a lawyer.
By her Response, filed on 12th April 2011, the mother seeks the following Orders (summarised):
a)That the child should live with her;
b)That the child should spend time with the father:
i)Each alternate weekend;
ii)From after school[1] or Day care on Wednesday until before school or Day Care on Thursday;
[1] The child is 17 months old.
c)That the mother and father should have equal shared parental responsibility for the child;
d)That they should not consume alcohol to excess, use illicit drugs or abuse prescription drugs when the child is in their care; and
e)A variety of other interim orders that seem to be entirely unnecessary to be made on an interim basis, including:
i)Allowing the child to speak to the other parent on the telephone when he reasonably requests;
ii)Obtaining copies of school reports;
iii)Arrangements for school holidays;
iv)Arrangements for Christmas and Easter in even numbered years;[2]
v)Arrangements for lengthy vacations overseas;
vi)Granting the parties liberty to attend school fetes; and
vii)Not questioning the child about the home life of the other parent.
[2] In a Response filed on 12th April 2011, an odd-numbered year.
Practitioners need to understand that it is of no benefit to their clients or of any assistance to the Court whatsoever when asking for interim orders merely to repeat the final orders that are sought. Interim orders are intended to cover a situation that cannot wait until an application is heard on a final basis. It is a waste of the Court’s time to ask for an order that is not going to be operable until the child learns to speak or is old enough to attend school. It is unlikely that this child will be attending school much before he attains the age of five, which will be in November 2014.
Areas of Agreement
The parties agree that the maternal grandmother, Ms J, and the mother’s sister Ms E are suitable people to supervise the mother’s time with the child.
Background
The father sets out the parties’ background in some detail in his affidavit sworn 18th February 2011.
The parties commenced to live together in December 2008. The mother has another child from a previous relationship. He is a little boy called [X] who was born [in] 2006.
The mother was a party to proceedings against [X]’s father in this Court in 2009. Those proceedings were finalised by consent orders made on
16th December 2009 providing that the parties should have equal shared parental responsibility for him and he would spend from Wednesday afternoon until Sunday afternoon with his father each alternate weekend, as well as time during the school holidays and on other occasions. For the balance of the time [X] would live with the mother.There is one child of the relationship, [Y], who was born [in] 2009.
The mother has had a history of depression and had previously used illicit drugs.[3]
[3] See affidavit of Mr Henson 18.2.2011 at paragraph [6].
There was an incident between the parties in April 2010 which resulted in the mother being taken by ambulance to the [P] Hospital.
The mother voluntarily admitted herself to the [N] Clinic on 22nd April 2010 and remained there as an inpatient until 4th May 2010. The father cared for both children whilst the mother was in the [N] Clinic.
After the mother returned to the parties’ home in [omitted], both of the children started day care for two days a week.
After a disagreement between the parties in September 2010 the father left with the child and stayed at his parents’ home for the weekend. He later returned and the mother was again admitted to the [N] Clinic on 4th September 2010. She remained there as an inpatient until 16th September.
There were disagreements between the parties from Boxing Day 2010 onwards and on 4th January 2011 the father arranged for the mother to be re-admitted to the [N] Clinic. The clinic was closed on 11th January because of the severe floods that his Queensland so the mother returned home. She re-entered the Clinic on 22nd January and remained there until 12th February 2011.
By this time, the older child, [X], had commenced school.
On Wednesday 16th February, the mother took [X] to school but was involved in a car accident after dropping the child at school. That evening, there was a violent incident between the parties and the mother left. The police arrived and the mother was later taken by ambulance to the [P] Hospital.
The mother did not return home and the father assumed the care of both of the boys. However, he telephoned the father of [X],
Mr Maberry, who came and took [X] into his care. [X] remains with his father and is the subject of other proceedings before this Court (File no. BRC 7370 of 2008).
The father commenced these proceedings by filing an application and an affidavit in support on 21st February 2011. The application was returnable on 13th April 2011.
The mother deposed in her affidavit affirmed on 11th April 2011 that she developed a severe case of post natal depression following the birth of [Y].[4]
[4] Affidavit of Ms Edgar 11.4.2011 at paragraph [14].
The mother also deposed that she resumed her sexual relationship with Mr Maberry, which she terminated in February 2011 after he refused to return [X] to her care.[5]
[5] Ibid at [20].
The mother underwent electro-convulsive therapy at the [N] Clinic under the supervision of her psychiatrist, Dr W, in February and March 2011. She was discharged from the [N] Clinic on 12th April 2011.
The mother deposed that she intends to live with her mother at [omitted].
The mother has formed a relationship with a man named Mr S, whom she apparently met at the [N] Clinic.
The mother was involved in an incident in New South Wales on
18th March 2011 that resulted in her being arrested and an Apprehended Violence Order was made against her.
The child [Y] is currently living with the father. The father is living with his sister Ms R, her husband and two children at [omitted]. She is [occupation omitted] and takes the child to [child care] each day and brings him back each evening whilst the father works.
Submissions and Evidence
The father relies on his affidavits of 18th February and 12th April 2011. The mother relies on her affidavit of 11th April 2011 and the affidavit of her mother, Ms J, affirmed 12th April 2011 and filed in Court on 13th April.
Ms Lakey, who appeared for the father, submitted that the child should remain living with the father, at least for the time being, and that the mother’s time with him should be supervised. The mother’s mother,
Ms J, and the mother’s sister, Ms E, are seen by the father as suitable and reliable people.
Although no specific order was sought in the father’s application, he seeks the appointment of an Independent Children’s Lawyer to safeguard the child’s interests.[6]
[6] Affidavit of Mr Henson 12.4.2011 at paragraph [48].
Counsel for the mother, Mr Alexander, submitted that this was not a matter where there would be any benefit in having the child’s interests independently represented, and it would lead to delay in finalising the matter. He referred to the report from the mother’s treating psychiatrist, Dr W, which expressed a favourable view of the mother’s recovery.
It was further submitted that it was not in the child’s best interests to be separated from his mother, as he needed to spend frequent time with her to develop a strong relationship.
In a helpful written submission, the mother’s counsel, Mr Alexander, put to the Court that:
·The most significant section 60CC factor able to be determined was the risk to either child when in the care of the mother
·Up until the present time the two fathers had been content for the mother to have the predominant care of the children
·The only basis upon which the mother’s continued care of the children could now be challenged is in respect of her mental health
·The mother does not pose a threat to the children as Dr W, her treating psychiatrist, has expressed the opinion that the mother is capable of being a primary care giver for her two children and there is no risk of harm in her care.
·The father deposes that he leaves home at 6:45 am and does not get home until 6:00 pm each evening and is therefore reliant on his family members to care for [Y]
·The mother is willing and able to care for both children
·The actions of the two fathers have taken the two children away from each other.
The Relevant Law
In deciding whether to make a particular parenting order in relation to a child, section 60CA of the Family Law Act 1975 provides that the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in the child’s best interests by considering the matters set out in subsection 60CC(2) (the primary considerations) and subsection 60CC(3) (additional considerations). The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see s.60CC(4)) and, where the parents have separated, as they have in this case, any events that have happened or circumstances that have existed since the separation occurred (see s.60CC(4A)).
When making a parenting order, the court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for his[7] parents to have equal shared parental responsibility for him. This presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)abuse of the child; or
b)family violence.
[7] In this case.
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied (see s.61DA(3)) (see also Goode & Goode[8]).
[8] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286.
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim order (see s.61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider:
a)whether the child spending equal time with each parent would be in his best interests; and
b)whether it would be reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for equal time with each parent, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of his parents would be in the child’s best interests; and
b)whether substantial and significant time with each parent would be reasonably practicable.
Substantial and significant time is defined by s.65DAA(3) to include not only days that fall on weekends and holidays but also days that do not fall on weekends and holidays. This is not particularly relevant when dealing with a child of [Y]’s age, as he is only 17 months old and a long way away from commencing school.
However, the time must also allow the parent to be involved in the child’s daily routine and be involved in occasions that are of particular significance to the child or of special significance to the parent.
I have considered all of those matters in some detail.
It has been submitted that this is a case where the child’s interests would best be served by appointing an Independent Children’s Lawyer. Section 68L of the Family Law Act 1975 provides that, in dealing with a case where a child’s best interests or a child’s welfare are the paramount consideration or a relevant consideration, the Court may order that the child’s interests in the proceedings are to be independently represented by a lawyer.
It is not necessarily the case that an Independent Children’s Lawyer[9] should only be appointed when a child is old enough to state his or her views. The Independent Children’s lawyer is not required to act upon the child’s instructions.
[9] Formerly known as a “separate representative” or “child’s representative”.
The decision of the Full Court of the Family Court in Re K[10] provides some useful guidelines at to when the Court should considering making an order to appoint an Independent Children’s Lawyer, notwithstanding the fact that the decision refers to the old term “separate representative”. The principles remain valid.
[10] (1994) 17 Fam LR 537; FLC 92-461.
One relevant guideline is where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children. The Full Court described the need for appointment in such cases as “self evident”.[11]
[11] (1994) FLC 92-461 at 80,775.
There is an application that the mother undergo an independent psychiatric examination for the purposes of determining her mental fitness. It is established law that the Court has no power to make such an order in isolation, but there is certainly power to make the order as a condition of a parenting order:
[51] Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order.[12]
[12] See L v T (1999) FLC 92-875 per Kay, Coleman and Brown JJ at [51] (86,391).
Conclusions
This is a troubling matter, and the Court needs to weigh up conflicting considerations in order to arrive at a result that is in the best interests of this young child. The application has been heard at the same time as the application by the father of the mother’s elder son, [X], for certain parenting orders (Maberry & Edgar BRC 7370/2008). Whilst I have decided this matter on the evidence and submissions presented in this matter, there are certain common features. It is for that reason that I intend to accede to the application by the parties’ lawyers that the applications should be consolidated.
I am also persuaded that this is a case where the interests of the child [Y] should be independently represented by a lawyer appointed with the assistance of Legal Aid Queensland. The mother’s ongoing mental health difficulties would indicate the need for independent representation for this child, not withstanding the fact that, at 17 months, he is too young for his views to be sought. There will be a need for an independent psychiatric report to be provided to the Court, and the Independent Children’s Lawyer, when he or she is appointed, would be able to assist in this regard.
The orders to be made are interim orders. The matter will come back to Court in June for further mention, by which time an Independent Children’s Lawyer will be available to assist the Court, and the situation can be reviewed at that time.
The Court needs to balance the benefit to the child of having a meaningful relationship with both of his parents against the need to protect him from harm. The mother’s recent erratic behaviour, leading to her admissions to the [N] Clinic, some of which have been voluntary, is a cause for concern, not so much because she may physically hurt [Y] but because he may suffer psychological harm from the mother’s behaviour or may suffer from some neglect. The mother was only discharged from the [N] Clinic after her most recent admission earlier this week, on Tuesday 12th April.
The father has deposed in his affidavit to the mother’s difficulty in coping with the demands of parenthood[13] and of his concerns about the mother’s drug use.[14]
[13] Affidavit of Mr Henson 18.2.2011 at paragraphs [9], [21] and [40].
[14] Ibid at [13]-[15], [33].
In my view, it is too soon after the mother’s release from [N] to make the decision that her 17 month old son should go back into her full time care.
At the same time, it is well established that children of [Y]’s age need to have regular and frequent contact with each parent in order that their relationship can develop. It would not be in this child’s interests not to spend time with his mother over the intervening period of time until this matter is back in Court.
The mother proposes to live with her mother, Ms J, who [has healthcare qualifications] and is supportive of her daughter. The mother’s sister,
Ms E, is also supportive and lives nearby and works only about five minutes’ drive away from the maternal grandmother’s home.It would seem to be useful for the mother to live with her mother and rely on her support, and that of her sister, both in her general living as well as when she has [Y] in her care.
The father has given evidence of incidents of violence by the mother against him when she has not been well, but there is no family violence order currently in force between the parties. The father has, however, given hearsay evidence in his recent affidavit that Mr Maberry telephoned him on 18th March to say that the mother had been arrested and an Apprehended Violence Order had been obtained against her by the NSW Police.
The immediate concerns, therefore, are:
a)The mother’s mental state;
b)The mother’s alleged use of illicit drugs; and
c)The mother’s apparent commencement of a new relationship with a man named Mr S, whom the father believes the mother met when they were both inpatients at the [N] Clinic.
There does not at this stage appear to be any reason not to apply the presumption that the parties should retain equal shared parental responsibility for [Y]. Because of the interim nature of these proceedings, I propose to make orders that each party should spend time with the child. The question of where the child is to live until a final hearing can wait until the Court has the benefit of the assistance of an Independent Children’s Lawyer and an independent psychiatric report.
The mother is to spend time with the child for two days each week. The aim of this is to assist her to develop her relationship with him. This should also enable the child to develop a regular routine. [Y] can spend the rest of the time with the father and members of his paternal extended family.
It is not in the child’s best interests at this stage to spend equal time with each parent, nor to spend substantial time with the mother. However, a regular two days each week, including overnight time, is time of some significance which can be increased as may be appropriate.
The mother’s time with the child at this stage should be subject to conditions that:
a)she reside at her mother’s home;
b)that her mother or her sister be present when [Y] is with her;
c)that she continues her treatment with Dr W;
d)that she abstains from the use of illicit drugs; and
e)that she submits to an independent psychiatric assessment.
The application will be adjourned to 20th June 2011 for further mention before Slack FM. By that stage, I would expect an Independent Children’s Lawyer to be involved and arrangements to be put in place for an independent psychiatric assessment. The mother will then have had slightly more than two months to establish a routine of care for [Y] and develop the ability to cope with the demands of looking after a busy toddler. If matters proceed without untoward incident over the intervening period, I would anticipate that the arrangement can be reviewed and the mother could begin to spend more time with [Y].
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 15 April 2011