Illingworth and Wedge

Case [2017] FCCA 2930

FEDERAL CIRCUIT COURT OF AUSTRALIA

ILLINGWORTH & WEDGE [2017] FCCA 2930
Catchwords:
FAMILY LAW – Parenting – application by paternal grandmother – father deceased – risk factors – mother’s health – mother primary carer.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 64B, 64C, 65DAA

Cases cited:

Blinko & Blinko [2015] FamCAFC 146

Donnell v Dovey [2009] FMCAfam 515
Harridge & Harridge [2010] FamCA 445

N & S and the Separate Representative (1996) FLC 92-655

Napier v Hepburn (2006) 36 Fam LR 395

M v M (1988) 166 CLR 69

Russell & Close [1993] FamCA 62
Applicant: MS ILLINGWORTH
Respondent: MS WEDGE
File Number: BRC 2528 of 2014
Judgment of: Judge Howard
Hearing dates: 21 and 22 August and 1 September 2017
Date of Last Submission: 1 September 2017
Delivered at: Brisbane
Delivered on: 30 November 2017

REPRESENTATION

Counsel for the Applicant: Mr McGregor
Solicitors for the Applicant: Beaudesert Legal
Counsel for the Respondent: Mr Thiele
Solicitors for the Respondent: Law Legal Practice
Counsel for the Independent Children’s Lawyer: Ms Christie
Solicitors for the Independent Children’s Lawyer: C M Bint Family Lawyers

ORDERS

  1. That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 7 December 2017.

  2. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 14 December 2017.

  3. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2528 of 2014

MS ILLINGWORTH

Applicant

And

MS WEDGE

Respondent

REASONS FOR JUDGMENT

  1. At the conclusion of the trial on 1 September 2017 the Court made it clear that, as part of the Orders that the Court would be making, there would be an Order that no time would be spent between the children and the paternal grandmother. The Court also intended to make it clear that there would be an Order that there would be no time between children and any other member of the Illingworth family. The Court also commenced providing some ex tempore reasons for judgment. The Court has reviewed and revised those draft ex tempore reasons for judgment. These written reasons for judgment provided here take precedence over any ex tempore comments made by the Court at the conclusion of the matter on 1 September 2017.

Background

  1. The applicant is the paternal…

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AGLC
Illingworth and Wedge [2017] FCCA 2930
Case
[2017] FCCA 2930
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders in relation to children, with the parties being the mother and the paternal grandmother. The dispute centred on the extent of contact, if any, the children should have with their paternal grandmother. The case was heard by Judge Howard.

The court was required to determine the best interests of the children, which is the paramount consideration under section 60CA of the *Family Law Act 1975* (Cth). This involved considering the primary considerations outlined in section 60CC(2), namely the benefit of a meaningful relationship with both parents and the need to protect the children from harm. The court also had to consider any other relevant fact or circumstance under section 60CC(3)(m). A key issue was the mother's mental health and its potential impact on the children's welfare.

Judge Howard's reasoning focused on the evidence presented, particularly the report from Dr V, a psychiatrist. Dr V's report indicated that the mother suffered from significant anxiety and depression, which was adversely affecting her parenting. He noted that the mother had an entrenched and negative view of the children's time with the paternal grandmother, which was unlikely to shift. While Dr V did not believe the mother lacked the capacity to make long-term decisions, he found her decision-making regarding contact with the paternal grandmother was impaired by her anxiety disorder and obsessional personality style. Dr V recommended ongoing mental health treatment for the mother, including potential antidepressant medication and strategies to manage her anxieties. The court considered that the mother's mental health vulnerabilities and her obsessional approach to contact with the paternal grandmother were significant factors in determining the children's best interests.

The court made orders for the Independent Children’s Lawyer to provide a proposed Final Order to the parties, with a deadline for them to attempt to reach an agreed position. If agreement could not be reached, the matter was to be listed for mention, with personal attendance required by the parties and their legal representatives.

Orders

Orders of the court

1.

That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 7 December 2017.

2.

That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 14 December 2017.

3.

That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After reviewing the significant amount of further evidence, Dr V stated his conclusions on page 12 of his report as follows:“CONCLUSIONSThe documentation provided has clarified some issues, in particular I note the report of Ms S that the children were generally content in the care of the paternal grandmother and had no concerns about the children’s welfare in the care of the paternal grandmother on a supervised or unsupervised basis. I noted that the children had displayed affection towards the paternal grandmother. I also note that the mother appeared somewhat selective in her reading of this report when conveyed to myself and also in the affidavit material, and seemed to hold a wholly negative view of the children’s time spent with the paternal grandmother. I also note that Ms S observed that the mother had an entrenched view about the paternal grandmother and the extended family, and that this was unlikely to shift. I also note the report of the mother’s treating psychologist, and that she was burdened by significant anxiety and depression and was becoming socially avoidant and that it was adversely affecting her parenting. I also note that the paternal grandmother reports that the mother offered to facilitate contact under her own supervision and that this offer was declined. I also note that the mother and paternal grandmother participated in one group counselling session only. I also note that the mother expressed a view that the helping professionals were not interested in the children’s best interests. With respect to the diagnostic issues in the mother, there was nothing in the documentation that would change my view that the mother has developed a psychotic illness. It would remain my view, upon reading the documents, that the mother most likely did not develop a major depressive episode but instead developed an Anxiety Disorder with Panic Features. I note I observed obsessive compulsive symptoms on my initial interview with the mother. The mother was somewhat minimising of this in the follow-up interview.With respect to the mother’s personality, I remain concerned that the mother continues to demonstrate a somewhat obsessional approach to the children’s contact with the paternal grandmother and that this obsessionality has impacted on other aspects of her life. Whether it would meet the criteria for an Obsessive-Compulsive Personality Disorder remains unclear but nevertheless these vulnerabilities appear significant. They are likely to be exacerbated when the mother is under significant stress or burdened by a mental illness (such as an Anxiety Disorder).” After his conclusions, Dr V stated his recommendations:“RECOMMENDATIONS(i) Given the above formulations, it would not be my view that the mother would be deprived of the capacity to make long term decisions with respect to the children. (ii)With respect to the mother’s decision making around facilitating access with the paternal grandmother, it could be argued that the mother’s anxiety disorder coupled with her obsessional personality style has clearly impacted upon these decisions, despite professional views that the children would benefit from contact with the paternal grandmother and the extended family, but it would not be my view that the mother’s capacity in this regard is deprived fully (although one could perhaps argue that it is perhaps impaired). (iii)With respect to the treatment of the mother, I would recommend that the mother continue to seek ongoing treatment with a suitably qualified mental health practitioner. I am somewhat concerned that the mother had reported that she had not attended upon her treating psychologist for some months despite the fact that she was suffering ongoing significant symptoms, and would suggest that the mother would benefit from more regular attendance. (iv) I would remain of the view that the mother would benefit from a trial of an antidepressant medication such as an SSRI, given the negative effect on her functioning more generally of her persistent anxiety symptoms. Even if the Court were to find that it was not in the children’s best interests to have any ongoing contact with the paternal grandmother or paternal family whatsoever, I would encourage the mother to continue to discuss with her general practitioner her psychological symptoms and whether treatment with a pharmacological agent would be indicated, particularly if these symptoms were to persist. (v) If the Court were to find that it was in the children’s best interests to indeed have an ongoing relationship with the paternal grandmother and/or the extended family, I would be more inclined to recommend that the mother seek treatment with a pharmacological agent, either with her general practitioner or with a suitably qualified psychiatrist. (vi) If the Court were to find to find it was in the children’s best interests to have an ongoing relationship with the paternal grandmother, the mother would benefit greatly in my view, from developing strategies and tools to protect the children from her significant anxieties and concerns about the paternal family. It would appear that the mother’s anxieties have either consciously or unconsciously impacted upon the children. (vii) If the Court were to form the view that it was not in the children’s bests interests to have an ongoing relationship with the paternal grandmother or paternal family more generally, whilst there may be some improvement in the mother symptomatology I would remain concerned that her obsessional defences and anxiety symptoms may persist, as one would suspect that in the context of a blended family of six children, that a degree of chaos would be the norm, and that the mother would benefit from considerable assistance in adapting to and accepting her lack of control over this. (viii) If the Court were to form the view that it was in the children’s best interests to have an ongoing relationship with the paternal grandmother and the extended family more generally, I would be of the view that the mother would need considerably more assistance and support than she has hitherto received both psychiatrically and psychologically, so as to meaningfully encourage the children to form a beneficial relationship with the paternal grandmother and paternal family more generally. (ix) As to what contact or custody arrangements would be in the best instead of the children, I would leave that to the expertise of the others.”

Ratio Decidendi

Legal Principle Established

Section 60CA of the Family Law Act 1975 (Cth) states:“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 60CC sets out how it is that a Court is to determine what is in a child’s best interests. Section 60CC states:“SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTSDetermining child’s best interests60CC(1) Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).Primary considerations60CC(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” The first stated primary consideration (section 60CC(2)(a)) is – the benefit to the child of having a meaningful relationship with both of the child’s parents. These children only have one surviving parent. The children already have a meaningful relationship with their mother. For the reasons stated below, the relationship between the children and the mother may well be undermined if the paternal grandmother is permitted to spend time with the children. The second stated primary consideration (section 60CC(2)(b)) is the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is convenient, in having regard to the particular circumstances of this case, to have regard to sections 60CC(2)(a) and (b) together with section 60CC(3)(m). Section 60CC(3)(m) requires the Court to consider – any other fact or circumstance that the Court thinks is relevant when determining what is in a child’s best interests. What looms large in this case is the evidence of the mother’s mental health and the need to protect the children from possible harm – namely a deterioration in the mental health of their only surviving parent and their primary carer, the mother. The mother initially saw Dr V on 26 November 2015. Dr V’s first report is annexed to an affidavit filed 12 February 2016. On page 6 of Dr V’s first report (the report is dated 2 February 2016) he states: “When I enquired as to her understanding of why she had been asked to see me, she said “ever since this has come about my emotional state has been eroded… I just can’t cope with anything”.” The mother was talking there about the Court proceedings and the applicant’s desire to obtain an Order permitting her to spend time with the children. On page 7 of his first report Dr V states that:“In terms of her past psychiatric history, she has never previously seen a psychiatrist. She did see a psychologist referred by her general practitioner in December 2014. From her description it appears it is mindfulness as well as exposure therapy for Court as well as cognitive behaviour therapy techniques. “I was seeing someone in April 2014 but she took maternity leave and since then I saw another person after the maternal grandfather died.” “On one occasion we just went over strategies which was mindfulness.”She denies she has ever been diagnosed with a psychiatric condition and has never been prescribed any psychotropic medication. “I did think about going to the general practitioner last year, my husband suggested it with all the Court stuff but I was pregnant and did not want to take anything.” She has never been admitted to a psychiatric hospital and denied any previous suicide attempts or threats or episodes of deliberate self-harm.In terms of her past medical history, she recently had planned a caesarean section and there were no complications from the birth. She does suffer from mild asthma but has never been hospitalised with this condition and there is no history of diabetes or epilepsy. She described having a concussion as a baby but she was never hospitalised with a head injury.She is currently not prescribed any medication. She is aware she has hay fever but she is not allergic to any medications. In terms of her drug and alcohol history, she is a non-smoker. She last used marijuana as a teenager, “I only used it occasionally”. She used amphetamines once a month for a period of six months at that time also but never injected drugs.In terms of alcohol use she will have a glass of wine since the delivery, but did not drink at all during pregnancy. “I generally drink one or two glasses a week”. She denied any previous problems with alcohol. In terms of her family history, she is the eldest in a sibship of four. Her father passed away from myocardial infarction this year. She is not aware of any family history of mental illness. “My maternal cousin had issues where she trashed my parent’s house” but she is not aware of the diagnosis or if it was drug related. There are no issues of suicides in the family and there are no other issues of drug or alcohol problems in her family. With respect to her developmental history, she was born in Brisbane and was not aware of any perinatal complications. She described her childhood as good. “We always did lots of things as a family and we are still really close”. She could not recall any unhappy memories, in particular denied being the victim of any physical, emotional or sexual abuse and there was no domestic violence in her parental relationship. “IN primary school I was one of the school captains, I was a goodie goodie”. She was outgoing and excelled academically. “I (hobby omitted) all my life up to a professional level.” Secondary school was much the same, she did well academically. “I got involved with the wrong group of people and left school three months into Year 12, my grades were starting to slip.”She then worked as a (occupation omitted) and following that full-time at (employer omitted). She returned back to high school when she was 19 where she completed Year 12. She then completed a (course omitted) which she completed over four years. She has been working as a (occupation omitted) since then except for the maternity leave. “I did work as a (occupation omitted) at a (employer omitted) for a period but now I am back working for (employer omitted) since 2014.”