Horn and Furlich
[2010] FMCAfam 1277
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HORN & FURLICH | [2010] FMCAfam 1277 |
| FAMILY LAW – Parenting – living arrangements for children aged 6 and 10 years – mother has been diagnosed with mental health disorder but refuses to accept diagnosis or engage in treatment – children expressing strong views and wishes to remain living with their father and to spend time with their mother “once she gets better”. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode and Goode (2006) FLC 93-286 |
| Applicant: | MR HORN |
| Respondent: | MS FURLICH |
| File Number: | DGC 662 of 2008 |
| Judgment of: | Bender FM |
| Hearing date: | 17 November 2010 |
| Date of Last Submission: | 17 November 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The children of the relationship namely [X] born [in] 2000 (“[X]”) and [Y] born [in] 2004 (“[Y]”) live with the father.
The father have sole parental responsibility for [X] and [Y].
[X] and [Y] spend time with the mother as agreed and such time be supervised by a person as nominated by the father.
For 24 hours immediately prior to the commencement of any time spent with [X] and [Y] by the mother and during all time spent periods, the mother is restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of alcohol and/or any legal or illegal drug, save and except for:
(a)any legal medication prescribed for the mother by a registered medical practitioner, and taken or used by the mother strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken by the mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
The mother is restrained from attending at any school [X] and/or [Y] may attend and from removing [X] and/or [Y] from their school and the father or his nominee only is permitted to remove [X] and/or [Y] from their school.
[X] and [Y] attend for counselling with the [C] and the parties follow all reasonable directions of the counsellor.
The father be restrained from consuming alcohol to excess whilst [X] and [Y] or either of them are in his care.
The independent children’s lawyer be discharged.
AND THE COURT NOTES THAT:
(A)The court has been advised that [B] Contact Centre are able to facilitate supervised time between the mother, [X] and [Y] forthwith. It is hoped the mother will avail herself of this opportunity to spend time with [X] and [Y].
IT IS NOTED that publication of this judgment under the pseudonym Horn & Furlich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 662 of 2008
| MR HORN |
Applicant
And
| MS FURLICH |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
The current proceedings in this matter commenced in October 2009 with the father’s Application that the parties’ children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2004 (“[Y]”) live with him and spend time with their mother each alternate weekend, half holidays and special occasions.
The mother’s Response sought an order for sole parental responsibility, that [X] and [Y] live with her and spend time with their father as agreed between the parties.
Interim Consent Orders were made on 2 December 2009 which provided for [X] and [Y] to live week about with each of their parents.
On 25 March 2010 the father issued an urgent Application in a Case seeking a suspension of the interim parenting orders, that [X] and [Y] live with the father and spend supervised time with the mother.
The affidavit supporting the father’s Application in a Case raised serious concerns as to the mother’s care of [X] and [Y], her mental health and her abuse of alcohol. There were also concerns about the mother removing [X] and [Y] from school so that the father was unable to collect them when due to live with him pursuant to the interim orders.
On 25 March 2010 interim ex parte orders were made which suspended the then current parenting orders and provided for [X] and [Y] to live with the father.
On 14 April 2010 further interim orders were made whereby [X] and [Y] continued to live with their father and provision was made for them to spend time with their mother each Sunday for four hours, such time to be supervised by such person as nominated by the Independent Children’s Lawyer. The orders also made provision for the mother to be psychiatrically assessed by Dr D and for the preparation of a Family Report (I note that a Family Report was prepared by Mr L dated 4 March 2010, he having seen the parties, [X] and [Y] in early December 2009. The events leading to the father’s urgent Application in a Case overtook the efficacy and relevance of this Report).
The Family Report of Mr S, Federal Magistrates Court Family Consultant, was released on 18 May 2010. His recommendations contained in paragraph 56 of that Report were as follows:
56.In the absence of evidence to the contrary the following recommendations are respectfully offered for the consideration of the parents and the Court.
·[X] and [Y] to continue to live with their father until further Orders are made.
·In the absence of a competent extended family member being available to supervise [X] and [Y] spending time with their mother, as per current Orders, then [B] Contact Centre, [address omitted], is considered a suitable community agency to offer such a service.
· Ms Furlich to do all things necessary to attend a Psychiatric assessment as per current Orders.
·[X] and [Y] to be referred to a ‘trauma assessment’ to assess the boys’ current and future needs in view of the aforementioned issues. Such an assessment can be accessed through the Community Mental Health programme by the boys’ general practitioner referring them to a psychologist with experience in the dynamics of family violence and mental health issues. The Court will benefit significantly from such information being available, along with Ms Furlich’s psychiatric assessment, to assist with the formulation of Final Orders to appropriately meet the boys’ needs.
Mr S’s Report and evidence will be expanded upon further in this judgment.
The psychiatric assessment of the mother by Dr D was made available on 15 June 2010. In his Report Dr D in the section headed “Opinion and Recommendations” on page 5 stated:
“Ms Furlich is a 41 year old woman who presented with features on mental state assessment consistent with a paranoid psychotic state. Most notably Ms Furlich presented as moderately thought disordered and she reported persecutory beliefs that had delusional qualities.”
On page 6 of his Report, Dr D stated:
“Ms Furlich displayed no insight into her mental condition. She appears to have not received any psychiatric management for at least a few years. Based on her presentation I would be concerned about Ms Furlich having unsupervised contact with the children until her mental state stabilises.”
The father filed an Amended Application on 14 July 2010 seeking sole parental responsibility for [X] and [Y], that [X] and [Y] live with him, for [X] and [Y] to spend supervised time with their mother and that the mother seek psychiatric intervention.
The matter came before the court for final hearing on 19 July 2010. By this time both parties were self-represented.
The court was advised that there had only been one instance of supervised time between the mother and [X] and [Y]. Such time had been supervised by the mother’s sister. The court was advised the mother’s sister and family were no longer prepared to supervise the mother’s time with [X] and [Y]. The mother was not agreeable to any member of the father’s family supervising her time with [X] and [Y].
The court was also advised by the mother that she rejected the diagnosis of Dr D.
In those circumstances, and as a matter of fairness to the mother, the matter was adjourned to 21 September 2010 and orders made which provided that the mother was to file an answering affidavit and affidavits from her treating General Practitioner and psychiatrist (noting they were to be provided with copies of the Reports of Mr S and Dr D and the orders) by 7 September 2010.
The orders also provided for the father to have sole parental responsibility for [X] and [Y], for [X] and [Y] to live with him and for the parties to do all things necessary to apply to [B] Contact Centre and that upon acceptance, [X] and [Y] spend supervised time with the mother at [B] Contact Centre.
Further, and in accordance with the recommendation of Mr S contained in the Family Report, the orders provided for the father to arrange for [X] and [Y] to attend upon a psychologist recommended by the Independent Children’s Lawyer for the purposes of assessing [X] and [Y] for trauma and that thereafter the father comply with all directions and recommendations of that psychologist.
When the matter came before the court on 21 September 2010, the mother, in compliance with the orders made on 19 July 2010, had filed her answering affidavit. Annexed to that affidavit was a Report from her treating General Practitioner Dr K. In his Report, Dr K stated that the mother had been attending his clinic since April 2002. He stated:
“There have been few consultations regarding her mental health issues. In July 2003 she obtained a script for Stelazine which she stated she had been taking for four years for a past paranoid psychotic episode. She was seeing her psychiatrist Dr P at that time. In June 2006 she attending (sic) with symptoms of anxiety and depression which she related to her marriage break up. She was prescribed an anti depressant medication but after that consultation she attended a different GP for further treatment and received counselling sessions elsewhere as well.
Ms Furlich was not seen at our clinic from October 2006 until July 2008. Since July 2008 she has again attended for non serious medical problems. She states that she had been taking an anti depressant medication until January 2010. I have received one letter from her psychiatrist, back in 2003, otherwise I have no details concerning her previous mental health. I do not know who her other treating GP is or what, if any, other treatment that she has received for her mental health. I do not believe that I am qualified to make any comment regarding her mental health.”
The mother did not file an affidavit from a psychiatrist. She advised the court she did not have a current psychiatrist and did not have the funds to engage a psychiatrist for an assessment to challenge the findings of Dr D.
The matter was unable to resolve and unfortunately could not be reached by the court on that day. It was accordingly adjourned to
17 November 2010 for final hearing and was listed with priority.
On 21 September 2010 the court was also advised by the Independent Children’s Lawyer that the intake procedure at [B] Contact Centre had been completed but there was a three month waiting period. The court was also advised that the father had undergone an initial interview with the [C] in relation to a trauma assessment and counselling for [X] and [Y] but they too had a two to three month waiting list.
On 17 November 2010 at the final hearing of this matter, the Independent Children’s Lawyer handed up to the court a Minute of Orders proposed by the Independent Children’s Lawyer which were supported by the father. The orders proposed are:
·That the father have sole parental responsibility for [X] and [Y];
·That [X] and [Y] live with the father;
·That [X] and [Y] spend time with the mother as agreed and such time be supervised by a person nominated by the father;
·That the mother be restrained from being under the influence of alcohol or any illegal substance 24 hours prior to or during any time she spent time with [X] and [Y];
·That the mother be restrained from attending at or removing [X] and [Y] from their schools;
·That [X] and [Y] attend the [C] for counselling; and
·That the father be restrained from consuming alcohol in excess when [X] and [Y] in his care.
The mother sought that parenting orders be made in the same terms as the consent orders made on 28 February 2008. Those orders provided for equal shared parental responsibility, for [X] and [Y] to live with their mother and spend time with their father on alternate weekends, limited school holiday time and for special occasions.
Briefly and by way of background the applicant father in this matter was born [in] 1968 and is 41 years of age. He is self-employed. He is not currently in a relationship. The respondent mother was born [in] 1969 and is 41 years of age. She is employed as a [omitted]. She is not in a relationship. The parties commenced a relationship in 1990, married [in] 1993 and separated in June 2006. As noted earlier in this judgment, consent orders were made in 2008 which provided for [X] and [Y] to live with their mother and spend alternate weekends with their father.
The evidence
Mr Horn
In the affidavit material filed by the father, he deposed to the mother’s behaviours becoming increasingly erratic over a period of time from the making of the consent orders in 2008. Of particular concern to the father was [X] and [Y]’s reports of the mother’s increasing alcohol consumption such that she would fall asleep on the toilet, that [X] was having to put [Y] to bed and that she had slapped [X] across the face. The father was also concerned that the mother was becoming increasingly paranoid, reporting people stalking her and stealing from her home.
The father was also concerned as to the complete breakdown of any communication between himself and the mother and her refusal to consult with him in relation to decisions relating to [X] and [Y]. He indicated the mother had arranged guitar lessons for [X] and had enrolled [X] in Auskick without any consultation with him. It was the father’s evidence the mother would not consult him about [Y]’s kindergarten arrangements or advise him when the children were ill.
After orders were made for a shared care arrangement in
December 2009, it was the father’s evidence, confirmed by the school principal, that the mother would either remove [X] and [Y] early from school or keep them home on the days they were to go into the father’s care, causing [X] and [Y] great distress.
It was the father’s evidence that in accordance with the April 2010 orders and having been advised by the Independent Children’s Lawyer that the mother’s sister would supervise time between the mother, [X] and [Y], he took [X] and [Y] to their aunt’s home on 18 April 2010. The mother did not attend. On 25 April 2010, [X] and [Y] again went to their aunt’s home to see their mother. It was the father’s evidence that shortly after he dropped [X] and [Y] off, their aunt rang him to collect [X] as [X] had become distressed after the mother became verbally aggressive with him.
After this incident, the mother’s sister declined to supervise the mother’s time with [X] and [Y].
[X] and [Y] have not spent time with their mother since
18 April 2010 save for the purpose of the interviews for the preparation of the Family Report.
It was the father’s evidence at the final hearing of this matter that [X] and [Y] are settled in his care. They changed schools in Term 2 or 3 of this year to [M] Primary School, a school closer to his home and support base.
It was the father’s evidence that the school have been very supportive of him, [X] and [Y] and that [X] and [Y] have been linked into the school counsellor who they see fortnightly. It was his evidence he has great support from his family and friends. In addition [X] and [Y] regularly see their maternal aunt and maternal grandparents.
It was the father’s evidence that he has recently been contacted by [B] Contact Centre and that the family is;
“at the top of the list”
and that supervised time between the mother and [X] and [Y] could start immediately. He indicated that [B] Contact Centre told him they had been unable to contact the mother despite both ringing and writing to her.
It was the father’s evidence that the boys were on the waiting list for a trauma assessment and counselling with the [C]. He indicated he attended an initial interview in September 2010. He indicated they told him there was a three month waiting period. Once there was a place available, he would be further interviewed as would [X] and [Y], after which they would engage in the services offered. In time this process could also include the mother.
It was the father’s evidence that he wanted [X] and [Y] to have a relationship with their mother. It was his evidence that if she would seek the professional assistance needed to address her mental health issues and if he could be satisfied she was better (through communication with her treating doctors) he would actively support her having unsupervised time with [X] and [Y]. In the interim the father wanted [X] and [Y] to see their mother on a supervised basis as he felt it was vitally important they be safe and secure with a settled routine.
It was the father’s evidence that in recent times both [X] and [Y] had asked to see their mother. It was his evidence he told them they were just waiting to get a place at [B] Contact Centre and that would happen (the father told the court he hadn’t told [X] and [Y] they were at “the top of the list” and that their mother couldn’t be contacted).
Ms Furlich
In the affidavits filed by the mother she deposed that the father was violent to her during the marriage. It was her evidence that post separation he “stalked” her, damaged her property and caused others to engage in similar behaviour.
The mother denied all allegations of alcohol abuse, of obstructing [X] and [Y]’s time with their father and of ever slapping [X].
In her affidavit sworn 6 September 2010 the mother denied the recommendations of Mr S and Dr D and maintained that she did not pose a risk to [X] and [Y]. In paragraph 16 of that affidavit she states:
“I acknowledge that the aforementioned reports highlight issues of mental health and drinking, which I attribute to the domestic violence that I had faced during my marriage. I have in the past sought professional assistance to address these issues, though I am currently not receiving formal (sic), as I believe there is no need. I feel that my confidence and sense of wellbeing has steadily improved since separation from the Applicant Husband.”
In her oral evidence it was the mother’s evidence that she did not believe she required supervision when spending time with [X] and [Y]. When asked directly if she would be prepared to see [X] and [Y] at [B] Contact Centre, she answered:
“no”
but then said:
“I’ll go if I have to.”
It was the mother’s evidence that she had only received a letter from the [B] Contact Centre advising of their ability to commence supervising time between herself and [X] and [Y] when she returned home from work on the night preceding the final hearing and accordingly had had no opportunity to respond to this offer.
The mother’s evidence was that she did not agree with Dr D’s diagnosis of paranoid psychosis, that she did not have mental health issues and she did not need treatment. It was her evidence:
“I am not willing to have treatment but if I got my own assessment that I needed treatment, then I would go and get such treatment.”
When the specific complaints that [X] made to Mr S in the Report process was put to the mother, ie. that she had slapped him on the face, thrown a bowl at him, screamed at him and locked him out of the house, the mother denied such incidents had occurred. When asked why [X] had said those things to the Family Consultant, it was the mother’s evidence she believed [X] had been coerced or manipulated to say such things by the father.
It was the mother’s evidence that the past conflict between herself and the father was ongoing. She told the court that two days after moving to her current location in [suburb omitted] in July 2010, the father was seen driving around the area (ie. stalking her). When challenged as to how he could have known where she was living in circumstances where it was her evidence she had only told two people where she was, it was her evidence:
“he just did and other people told me they had seen him as well.”
The mother is pursuing an Intervention Order against the father in the State Court system. This is being vigorously defended by the father. There was to be a mention of that matter in the State Court this morning.
Counsel for the Independent Children’s Lawyer summarised the mother’s position to her in the following terms, to which the mother agreed:
·The father has detached [X] and [Y] from you;
·You pose no risk to [X] and [Y] at all (in the face of Dr D’s assessment); and
·You don’t agree with Mr S’s assessment that you have no insight into how your illness impacts on the children.
Mr S
Mr S is a Family Consultant who prepared a Family Report dated
17 May 2010. Mr S also gave oral evidence at the hearing of the matter.
In relation to [X], Mr S reported at paragraph 33:
33.[X], ten years of age, presented as a delightful articulate boy who exhibited a well honed sense of humour, albeit self deprecating about his small physical stature.
At paragraphs 35 and 36, Mr S reported that:
35.Invited to consider the purpose of the interviews [X] demonstrated significant knowledge about his parents dispute, stating “I know about this, my mother’s an alcoholic [and she] thinks everyone is stalking her”. [X] spoke of various concerning experiences, for example his mother having thrown a bowl at him in the past, being physically punished, “…anytime I’m in trouble she slaps my face”. [X] stated that his mother ‘smokes’ in the car and house, and she claims that his dad is stalking her, that his dad takes drugs, that she refers to the Court as an idiot and uses derogatory language in his presence when describing his paternal grandmother. [X] reports that he feels unable to tell his mother that he does not like her using swear words in his presence, but even more importantly for [X] is that not only is he “afraid to tell her [he doesn’t like it when she swears but he’s] afraid to tell [his] Mum anything cos she might slap me or lock me out of the room”. Invited to explore the impact of his experiences [X] added that “sometimes [his mother] gets really angry and screaming [sic] and once I couldn’t go into the house because she was drunk and screaming so loud”. Invited to clarify his reference to his mother being ‘drunk’, [X] reiterated his view, “[she was] definitely drunk [she] drinks a lot of alcohol, red wine, she always goes to the shop and buys wine, beer and wine it’s not good for you”. Invited to reflect on what he does when he considers that his mother is alcohol affected [X] responded “when she’s drunk I just go to my room and try to sleep”.
36.[X] articulately expressed a range of concerning experiences including that of his mother reacting unpredictably towards the television whilst watching footage of the recent bushfires, and whereupon she damaged the television whilst punching the screen.
Mr S described [Y] in the following words:
40.[Y], five years of age, presented as a delightfully bright little boy, who described positive aspects of his attendance at school, identifying having a number of friends at school, and stating that he lives with both his mother and his father.
Under the heading “Evaluation” Mr S reported as follows:
49.At interview Mr Horn gave the impression that he was genuinely concerned not only about his son’s exposure to
Ms Furlich’s reportedly unpredictable behaviour, but appeared genuinely concerned for Ms Furlich herself, and has stated that he supports the boys having a relationship with their mother, indeed supporting an ongoing shared parenting arrangement into the future. Putting aside for the moment the appropriateness or otherwise of such an a parenting arrangement, Mr Horn continues to lack confidence in Ms Furlich’s ability to ensure the children are safe and are not exposed to her concerning and at times reportedly bizarre behaviour.
50.Despite attempts to engage Ms Furlich about the concerns being expressed she denies that she has any such problems, for example, moderating her alcohol consumption, or indeed that she has any current mental health problems, albeit acknowledges difficulties in the past. Ms Furlich remains focussed on apportioning blame for the past conflict and the current situation. Ms Furlich lacks insight about the concerns held for her health, although by default it seems, she acknowledges that [X] demonstrates some significant and concerning behavioural difficulties and concurs with the need for him to receive specialist assistance to address those issues.
Mr S was specifically asked in cross-examination by Counsel for the Independent Children’s Lawyer whether he had formed the view that the concerns and behaviours described to him by [X] as set out previously in this judgment were as a result of coercion or manipulation of him by the father. It was Mr S’s response:
“I don’t have any recollection of forming the view he had been manipulated. I actually found him to be a bright, astute, articulate little boy who was in some respects more mature in lots of ways. I don’t have any evidence to suggest that he was being manipulated in that sense.”
Mr S, having read Dr D’s Report and on being advised that the mother had rejected Dr D’s assessment of her and was strongly of the view that she did not need psychiatric intervention, confirmed his recommendation that until such time as the mother developed insight into her condition, the need for it to be addressed and the impact that her failure to do so has on [X] and [Y], any time between the mother and [X] and [Y] would have to be supervised.
Dr D
Dr D’s Psychiatric Assessment of the mother contained in his Report of 15 June 2010 was before the court by way of his affidavit sworn on
1 September 2010 and filed on 6 September 2010.
None of the parties sought to cross-examine Dr D and accordingly his evidence was unchallenged.
Dr D’s opinions and recommendations have been set out previously in this judgment.
I will however set out some of Dr D’s record of his interview with the mother. On page 4 of his Report, Dr D sets out as follows:
“Ms Furlich proved very difficult to maintain of track when exploring her psychiatric history and relationship with Mr Horn. She digressed into tangential and loosely associated material that focused on suspicious and periodically frankly paranoid thoughts relating to Mr Horn.
Ms Furlich said she had recently spoken to Mr Horn’s parents on the telephone. She heard a noise in the background that she equated to the tapping of a pipe on a (sic) ashtray. She said she “knew what to listen for”. She was convinced his parents were smoking bongs with the children. The following day she observed a person driving in the direction of South Australia confirming her suspicions of drug use.
Ms Furlich further reported that Mr Horn had entered her house and taken objects. Various objects including the children’s toys were missing. Money had been removed from her account. She had observed people following her around the street. She was convinced Mr Horn, Mr Horn’s father and an uncle followed her around the streets. For the last four years she was certain
Mr Horn spoke to neighbours to obtain information about her movements. She said she “can hear them talking”. She said she had observed these behaviours over the last month.
Ms Furlich described an extraordinary incident in 2008 that occurred eighteen months after the relationship with Mr Horn ended. She alluded to believing that Mr Horn was involved in orchestrating an aggravated burglary. One evening she heard a knock on the door. She allowed a person she had not met into her house. She had consensual sex with this male promptly after he entered. She could not provide an explanation for this incident other than to offer she was intoxicated. She said she felt a “bit violated”. Since this incident she had noted other items removed from her house including bills, receipts and a potato peeler.”
The mother’s ongoing belief that the father is stalking her was evident in her evidence to the court.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The father is seeking orders that he have sole parental responsibility for [X] and [Y]. This is supported by the Independent Children’s Lawyer. The mother seems to now seek orders for equal shared parental responsibility although her Response filed on 16 November 2009 sought that she have sole parental responsibility for [X] and [Y].
It is apparent from the evidence in this case, being the current status of the mother’s mental health, the reality that she is spending little or no time with [X] and [Y] and the complete lack of communication between the parties, an order for equal shared parental responsibility is not possible, practical or in [X] and [Y]’s best interests.
Accordingly, an order that the father have sole parental responsibility for [X] and [Y] shall be made.
Section 65daa of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Full Court in Goode and Goode (2006) FLC 93-286 held that even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication significant and substantial time), the court is nonetheless required to consider which arrangements, including equal time or significant and substantial time, will best promote the child’s best interests.
The father’s evidence is that he would be open to arrangements whereby [X] and [Y] spent either equal time with each parent or lived with him and spent significant and substantial time with their mother but only if her current mental health issues were acknowledged by her and she undertook appropriate treatment to address those issues.
When determining what arrangements should be put in place for children, the court must make orders that are in the best interests of the children. In order to determine what those best interests are, the court is required to consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the relevant matters as set out in subsections 2 and 3 of section 60cc of the Act must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to what orders will be in the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] and [Y] have a close, living and meaningful relationship with their father.
[X] and [Y]’s relationship with their mother at this time has been severely impacted by her current mental health problems, her excessive use of alcohol and her inability to acknowledge that she has such problems.
[X], as the elder child, has been most impacted by his mother’s behaviours. He has described instances of grossly inappropriate behaviour on his mother’s behalf such that he is very angry with her, is distrustful and wary of how she will interact or respond when he is with her and is reluctant to spend time with her until she “gets help” or “gets better”.
[Y] speaks of having a “drunk Mum” to his father and to his father’s friends and of wanting her “to get better”.
Since orders were made placing [X] and [Y] in their father’s full time care he has ensured their care, both physical and emotional. The father has changed his employment to ensure he is more available to [X] and [Y]. He has, having placed [X] and [Y] in a new school closer to his home and supports, engaged closely with the school including linking [X] and [Y] with the school counsellor to ensure they have made the transition smoothly. He has engaged with [C] to enable trauma counselling for [X] and [Y] as recommended by the Family Report Writer.
The mother does not accept that she has issues with her mental health or that she in any way poses a risk to either of [X] or [Y].
In his Family Report, Mr S made the following observations at paragraphs 53 and 54:
53.In light of the identified issues it is considered essential that [X] and [Y] continue to live in an environment which is stable and predictable in every possible way, one where they are neither exposed to family violence, denigration by either parent of the other parent, or indeed any discussions about their parents’ ongoing unresolved dispute.
54.The professional literature in this respect is unequivocal about the need to ameliorate all unresolved inter-parental conflict to ensure that children are safe but indicates the need to feel safe in order to have the necessary opportunities to meet vitally important developmental milestones. Of additional assistance to the Court in this matter, is that the professional literature indicates that the presence of a parent’s mental health problems, in and of themselves does not preclude children having an ongoing and indeed potentially nurturing relationship with that parent. What is vital, however, is the need for that parent to demonstrate an awareness of their children’s needs and demonstrate a willingness or capacity to engage with health professionals and perhaps community agencies for assistance. An additional requirement considered vital to the children having positive relationships with that parent is the need to demonstrate their commitment to complying with any treatment plan developed, including further or ongoing assessment and possibly including a medication regime.
Mr S was asked to expand on these observations in his oral evidence at the final hearing of this matter. He explained:
“If a parent is unable to develop an insight into their need for psychiatric support, assessment and medication if necessary, then that means the parent is unable or unlikely to be able to have an insight into the impact of their mental health on their children. So the consequences of that is they’re not likely to be able to prioritise the children’s needs. There is potential for the children to be placed in risky situations if the mother is having a psychotic episode as she will not be focused on the children’s needs and that has the potential to place the children at significant risk, physically and emotionally.”
It was Mr S’s further evidence that in relation to [X] and [Y]’s development, the mother’s failure to acknowledge her mental health issues would:
“mean that if they continue to be exposed to that environment in the absence of treatment, support and medication, it will mean that the potential is for them to have their capacity to meet important developmental milestones compromised and compromised severely.”
The evidence of Dr D and of the mother is such that there is little doubt in my mind that the mother is currently suffering from serious mental health issues. It is also very clear from the mother’s evidence that she does not accept she has mental health issues and therefore will not engage with the appropriate health professionals and commit to or comply with any treatment plan.
In those circumstances and whilst the mother continues not to accept the necessity for her to engage in treatment, to allow her to have unsupervised time with [X] and [Y] would place them at real risk of physical and psychological harm.
In light of the above finding, it is not my intention to explore at length the additional considerations as enumerated in section 60cc of the Act. However I will touch on them briefly.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both [X] and [Y] have expressed the wish to live with their father, not to spend any time (especially overnight time) with their mother until “she gets help” and “till she gets better”.
The father reports [X] and [Y] are now saying they want to see their Mum and understand that will happen when they can go to [B] Contact Centre.
In light of their experiences and especially the matters raised by [X], who Mr S describes as an articulate, insightful and mature boy, considerable weight should be given to their views.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As set out previously in this judgment, [X] and [Y] have a very positive relationship with their father. Their relationship with their mother has been severely impinged by her current mental health issues.
To his credit, the father is ensuring [X] and [Y]’s relationship with their extended family, including their extended maternal family, is being supported and encouraged.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The father, to his credit, has shown a real willingness to support [X] and [Y]’s relationship with their mother and speaks convincingly of wanting the boys to see their mother, but subject to ensuring their safety and well-being within the constraints of the mother’s current mental health issues. I accept that if the mother were to address this and provide the father with confirmation from her treating mental health treaters that she was engaging in appropriate treatment, such time would commence.
The mother’s capacity in this regard, at this time, is hindered because of her mental health issues, evidenced by her withholding [X] and [Y] from school earlier this year.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The reality for [X] and [Y] is that their living arrangements have quite dramatically altered in the last six months as a result of the mother’s mental health issues. These have been managed sensitively and supportively by the father, such that both [X] and [Y] are in a stable and calm environment.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The issue at this time is the mother’s ambivalence about taking up the opportunity to spend time with [X] and [Y] at [B] Contact Centre as she does not accept there is a need for her time with the boys to be supervised.
If the mother fails to take advantage of this opportunity being offered by [B] Contact Centre right now, the practical reality is that there will be no other realistic opportunity for her to spend time with [X] and [Y].
As [X] and [Y] are both expressing a wish to see her at [B] Contact Centre, it can only be hoped that the mother will take up this opportunity and provide a commitment to the boys to continue to do so.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The father has shown he has the capacity to provide for [X] and [Y]’s physical, emotional and intellectual needs.
Very sadly for her and [X] and [Y] and for the reasons well set out in this judgment, the mother at this time is unable to meet [X] and [Y]’s physical, emotional and intellectual needs.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love their sons. Historically they have been responsible parents and the father continues to be so. Unfortunately, at this time and because of her mental health issues, the mother is unable to fulfil those responsibilities.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The mother’s allegations of past and ongoing violence perpetrated against her by the father have been set out previously in this judgment. The veracity of these allegations is difficult to determine in the context of the mother’s current mental health issues.
There are current Intervention Order proceedings before the State Courts which will be determined by that Court in the coming months.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The unresolved nature of the mother’s current mental health makes it very difficult to make any orders at this time that could be seen to finalise all matters for [X] and [Y].
It was submitted on behalf of the Independent Children’s Lawyer, and I agree, that the orders best made at this time are those which can best provide [X] and [Y] with a degree of finality to ensure they remain in a stable and calm environment.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
I discussed with Counsel for the Independent Children’s Lawyer whether orders should be made at this time that required the mother to attend [B] Contact Centre to see [X] and [Y] and put in place some process whereby [X] and [Y] could start unsupervised time with their mother if she were to provide proof from a treating mental health professional that she had firstly developed the requisite insight to recognise the need for treatment and had then fully engaged in and was following a treatment plan.
Whilst Counsel for the Independent Children’s Lawyer indicated the Independent Children’s Lawyer would not oppose such orders, she pondered that given the mother’s current lack of insight into her mental health issues and their impact on her behaviour and her rigid opposition to engaging in any sort of treatment, whether such orders would in fact be counter-productive in that they could lead to even more litigation and in turn uncertainty for [X] and [Y] when what they most needed at this time was a degree of finality.
Conclusion
This very sad matter involves two young boys aged 10 and 6 years, who until recently, have been in the primary care of their mother whilst spending regular time with their father following their parents’ separation in 2006.
In the last 12 months, the mother’s behaviours have become unpredictable and involved excessive alcohol consumption, paranoid beliefs she is being stalked and harassed by the father and other persons on his behalf such that her parenting deteriorated to the level that the court made orders placing [X] and [Y] in the father’s care and allowing them to spend supervised time only with the mother.
A psychiatric assessment of the mother by Dr D resulted in a finding that she is suffering from a paranoid psychosis and, absent the mother embracing the proper therapeutic interventions, her time with [X] and [Y] needs to be supervised for their own safety. The court accepts this finding.
The mother rejects this finding out of hand and has indicated to the court that there is no need for her to engage in treatment to address a problem that does not exist.
Unfortunately in these circumstances the court has no option but to make orders that will provide for the father to have sole parental responsibility for [X] and [Y], for them to live with him and to spend supervised time with their mother at times as agreed, to be supervised by such person or organisation as nominated by the father.
I considered whether orders should also be made which specify supervised time between [X], [Y] and the mother commence at [B] Contact Centre forthwith and that if the mother provides proof to the father that she has properly engaged in the necessary psychiatric therapeutic intervention with a psychiatrist provided with the Reports of Dr D, Mr S and this judgment, then unsupervised time could commence.
Since this matter first came before me in March 2010 the mother has not altered her belief that she has no mental health issues that require intervention. She has been given every opportunity by me (and the father and the Independent Children’s Lawyer) to provide evidence to this court to challenge the findings in the Report of Dr D. She has failed to do so.
The mother has made it very clear she does not accept any need for her time with [X] and [Y] to be supervised. The mother was given the opportunity to spend time with [X] and [Y] in her sister’s home and did not avail herself of that opportunity and behaved in such a way that her sister declined to further supervise the time.
The court cannot have any confidence the mother will avail herself of the opportunity to spend time with [X] and [Y] at [B] Contact Centre given her behaviour and evidence throughout these proceedings.
The mother was similarly adamant that she would not undergo any treatment for mental health issues.
In all these circumstances, I have formed the view that orders of the type contemplated by me in paragraphs 104 and 111 of this judgment would be fraught with difficulty and would not be in [X] and [Y]’s best interests.
Accordingly, orders will be made in the terms proposed by the Independent Children’s Lawyer and supported by the father.
The orders contain a restraint on the father consuming alcohol to excess when [X] and [Y] are in his care. There was no evidence before me as to the necessity for this order but as it was proposed by the Independent Children’s Lawyer and agreed to by the father I have made that order accordingly.
Finally, as noted previously in this judgment, the mother can immediately start spending time with [X] and [Y] at the [B] Contact Centre. I strongly encourage her to not only take up that opportunity but to ensure that she attends regularly. Both [X] and [Y] have expressed a desire to see their mother and they need her to show her commitment to them, even where she does not accept the need for supervision of her time with them.
I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 19 November 2010
0
0
0