Jasper and Lilley

[2018] FamCA 170

FAMILY COURT OF AUSTRALIA

JASPER & LILLEY [2018] FamCA 170

FAMILY LAW – CHILDREN – Parenting – Where the mother seeks overnight supervised time with the child, aged seven – Where the mother suffers from a mental illness – Where the father opposes overnight time – Where the expert recommends that the mother’s current time with the child be extended – Orders made for the mother to spend time with the child each week progressing to one night in each alternate weekend supervised by the maternal grandparents.

APPLICANT: Ms Jasper

RESPONDENT: Mr Lilley

INDEPENDENT CHILDREN’S LAWYER: Stephen Bell & Associates

FILE NUMBER: SYC 6826 of 2013

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray

SOLICITOR FOR THE RESPONDENT: Felicio Law Firm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stephen Bell & Associates

Orders

1. That Order 2 made 16 February 2018 is vacated and in lieu thereof the following order is made.

2. That the child, B, spend supervised time with the mother for six (6) consecutive Saturdays commencing on 24 March 2018 between 9.00 am and 5.00 pm. 

3. That commencing 5 May 2018 and each alternate weekend thereafter, the child spend supervised time with the mother from 9.00 am on Saturday until 5.00 pm on Sunday.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jasper & Lilley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6826 of 2013

Ms Jasper

Applicant

And

Mr Lilley

Respondent

REASONS FOR JUDGMENT

1. B, who was born in 2011 and is seven years old, is the child of Ms Jasper (“the mother”) and Mr Lilley (“the father”).  The child lives with her father.

2. In 2011, after the child was born, the mother was diagnosed with Post-partum Psychosis and subsequently with Bipolar Affective Disorder. 

3. The mother and the father separated on 13 April 2013 and the child lived with her mother and spent time with her father.

4. In April 2014 the mother was admitted to Suburb C Hospital and thereafter transferred to a mental health facility.  In May 2014 the father filed an Application in a Case seeking an order that the child live with him and since May 2014 the child has lived with her father.

5. The substantive proceedings which are currently before the Court relate to the parenting arrangements for the child.

6. On 13 March 2014 a Family Consultant conducted a Child Dispute Conference and prepared a Memorandum to the Court.

7. The Family Consultant summarised the issues in relation to the mother’s mental health in the following way:

   ·The father also raised concern about the mother’s mental health.  Although he believes [the child] is generally adequately cared for by the mother, he suggested that the mother may be inattentive to [the child], and that [the child’s] speech and toilet training has regressed since living primarily with her mother.  He was unclear if this was related to the mother’s mental health.  He said that he is further concerned that the mother may be minimising her diagnosis of bi‑polar and if she returns to living independently her mental health may decline and so this may impose a risk to [the child].  While the mother resides with her parents the father indicates there is limited immediate risk to [the child].

   ·The mother confirmed that she has a diagnosis of bi-polar and was formerly diagnosed with postpartum psychosis.  She claims that her mental health is stable and has been for over one year.  She said that she is compliant with her medication, she sees a mental health nurse at least once a fortnight and she attends her GP for general check-ups on her mental health every few months.  She denies that there is any risk to [the child] from her mental health diagnosis.  She denies that [the child’s] development has regressed and claims that [the child’s] speech is good and that she is toilet trained.

   ·Whether or not the mother’s mental health is stable and whether her diagnosis impacts her ability to provide adequate care to [the child] may require further assessment.  If sufficient information can be obtained from the mother’s treating mental health professionals then a family report may be sufficient to evaluate the information in terms of the implications for [the child], otherwise, an expert may be required to conduct and (sic) assessment of the mother’s mental health and evaluate its impact on [the child].  In the interim, the possible risk to [the child] from the mother’s mental (sic) is perhaps moderated by the mother’s regular engagement with a mental health nurse and by the mother residing with the maternal grandparents.

8. Dr D, a child and family psychiatrist in private practice, was appointed as single expert in the proceedings.  Dr D produced a report dated 14 April 2015.  Dr D noted that at that time the father wished to remain the primary carer of the child and that:

   He is happy for her to have alternate weekends perhaps Friday to Sunday.  If her parents are there it would be preferable.  “I’d prefer a little bit of supervision.  It just gives peace of mind.”

9. Dr D recommended that the child remain living with her father.  In relation to the child’s contact with her mother Dr D stated:

   2.I recommend that there be regular contact with the mother.  The contact of three days and two nights per week seems to me a positive one.  Whilst [the child] is at preschool this can be during the week.  However when [the child] starts to go to school next year there may need to be a variation on this.  It could possibly be from Friday to Monday morning or Friday to Sunday fortnightly.  There could also be some contact in the intervening week.

10. Dr D further stated:

    7.I recommend that both parents have their own respective mental health support in order to help deal with the issues.  It is important for [the father] to be informed about [the mother’s] condition should the need arise.  This can often create some problems where health professionals don’t want to breach confidentiality.   However it would be helpful for [the father] so that he can be reassured that [the mother] is well and that there don’t need to be permanent supervision orders in place.  The maternal grandparents may be able to play a crucial role in being a bridge to provide reassuring information so that contact can only be interrupted should there be an acute episode of illness.  I believe that [the mother] could quite capably care for [the child] without supervision for contact visits in the future which would be enhanced if there are no questionings of [the child] about the father and if there is a supportive mechanism in place for the father to know that the mother is well with out having to guess.

11. In May 2015 the mother was admitted to Suburb E Hospital for one day only.

12. On 24 July 2015 orders were made by consent for the parties to make contact with the F Contact Centre so that the child could spend time with the mother facilitated by the contact service.

13. The mother was again admitted to hospital between 3 and 26 August 2015 and in October 2015.  After her release the mother continued to spend time with the child facilitated by the F Contact Centre.

14. In November 2015 the matter was transferred to the Family Court.

15. In July 2016 the mother’s parents gave undertakings in relation to supervision of any time spent between the mother and the child.

16. The mother was again admitted to hospital on 6 October 2016.  The maternal grandmother notified the F Contact Centre that the mother was unwell and the scheduled visit did not occur.

17. On 17 November 2016 orders were made by consent for the child to live with the father and spend time with the mother from 10.00 am to 12.00 noon on Christmas Day in 2016 and on each alternate Saturday from 10.00 am to 12.00 noon as well as other times agreed between the parties.  Those orders were made conditional upon the maternal grandmother being present to supervise the child’s time with the mother.

18. The mother was again admitted to hospital on 16 August 2017 and on 17 August 2017 the maternal grandmother notified the father that the mother had been hospitalised and that the contact visits would cease for a while.

19. The maternal grandmother attended a three day course entitled “Communication for Carers” through G Group in November 2017, at the suggestion of the Independent Children’s Lawyer (“ICL”).

20. The matter was listed for the first day of the trial on 16 February 2018.  On that day the mother sought to agitate an Application in a Case seeking overnight time with the child.  The father was not in a position to meet that application on that day and the application itself was adjourned.  On 16 February 2018 directions were made for the preparation of the matter for trial, including the preparation of an updated report by Dr D and the filing of affidavits.  Also on that day, by consent, orders were made that the child spend time with her mother each alternate Saturday from 9.00 am to 1.00 pm, that time to be supervised by either or both of the maternal grandparents or another person who is acceptable to both the father and the mother.

21. The mother’s application to spend further time with the child including overnight time was listed for hearing on 16 March 2018.

22. Between 22 February 2018 and 22 March 2018 the maternal grandmother attended a course titled “Connecting with Carers” presented by H Group.

23. On 5 March 2018 the mother signed authorities for her general practitioner, Dr J and her treating psychiatrist, Dr K, to communicate with the father about the mother’s mental health as and when contacted by him and those authorities were provided to the father’s solicitor and to the respective doctors. 

24. When the matter came before the Court on 16 March 2018 the mother sought orders that the child spend supervised time with her each Saturday from 9.00 am to 5.00 pm for a period of six weeks and thereafter every second weekend from 5.00 pm on Friday until 5.00 pm on Sunday.  The mother sought extended periods of time during school holiday periods and proposed that, for the purpose of changeover, the father, the mother and the supervisor should meet at McDonalds at Suburb K which it is agreed is approximately halfway between the father’s residence and the mother’s residence.

25. The mother also sought orders in relation to special occasions and school holiday periods.

26. The father sought that the mother’s application be dismissed.

27. The father relied upon an affidavit sworn by him on 12 March 2018.

28. The father conceded that when the mother was admitted to L Hospital in 2017 he was advised by the maternal grandmother.  The father did not suggest that there had been any incident in relation to the child’s time with her mother since November 2017 which should be a cause of concern.

29. In the course of submissions, the solicitor for the father was asked what further supervisory mechanism or safeguards could be put in place to satisfy the father that the child would be safe in the care of her mother for overnight periods supervised by the grandparents. The solicitor conceded that there were no other safeguards for which the father contended.

30. Tendered in the mother’s case were a letter from Dr M, a psychiatrist, dated 29 June 2017, a letter from Dr J, the mother’s treating general practitioner dated 27 January 2018 and a letter from the mother’s treating psychiatrist, Dr K, dated 8 February 2018.

31. Dr K is seeing the mother monthly.

32. The mother deposed in her affidavit sworn 9 March 2018 to a number of conversations with the child where the child has told the mother that she would like to spend more time with her.

33. The position of the ICL was that the time which the child spends with her mother should be increased but not to the extent that the mother now proposes.  The ICL proposed that the present arrangement where the child spends four hours with her mother be continued for the next four weeks and that overnight time should then commence from 3.00 pm Saturday until 10.00 am Sunday until the end of 2018. The ICL also agreed with the mother’s proposal that changeovers should occur at McDonalds Suburb K.

34. There is no dispute that it is important that the child maintains a strong relationship with her mother and that in order to do that she needs to spend time with her mother.  The issue which is of concern to the father is, understandably, how the child is to be safeguarded.  The father strongly contends that there are no safeguards that can be put in place in relation to overnight time.  I do not accept that contention.

35. The maternal grandparents have given written undertakings in relation to their obligations as supervisors and it is common ground that they have, on two occasions, advised the father that the mother was not well enough for supervised visits to take place.

36. There is no evidence that the maternal grandparents are not diligent supervisors with the child’s best interests at heart.

37. The father in his affidavit deposed:

    69.If [the mother] has no hospital admissions this year I would be open to consenting to time overnight on a supervised basis from January 2019.  If [the mother] was to have a relapse, I would like the time reverted to day only (4 hours each fortnight) on a supervised basis.

    70.Until final orders are made, I seek that the 4 hours each fortnight continue each alternate Saturday.

38. I do not consider that four hours a fortnight is sufficient time for the child to spend with her mother and for their relationship to be maintained.

39. I am conscious of the recommendation of Dr D that the time be substantially in excess of four hours per fortnight.

40. I am confident that the supervision by the mother’s parents, or other adults acceptable to the father, is sufficient to ensure the child’s safety and welfare during the periods which she spends with her mother.

41. I am not however persuaded to extend the time to the extent for which the mother contends.

42. I consider that the child should be seeing her mother at least two days a fortnight and to that end I propose to order that the child spend time with her mother each Saturday from 9.00 am to 5.00 pm for a period of six weeks and, commencing on the seventh week, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday.

Changeovers

1. The mother proposes that the changeover should take place at McDonalds Suburb K so that the parents are sharing the travelling.  The father opposes that order.  He deposed that he is a shift worker with varying work rosters.  He has re-partnered and has a young family to care for and he proposes that for those reasons the mother should continue to collect the child at the commencement of her time in the company of a supervisor and return the child to his residence.  In the circumstances, I consider that would be an appropriate arrangement for the time being.

2. I do not propose to make orders varying the time the child spends with her mother during the school holiday period.

3. The matter is listed for call-over on 15 October 2018 and the parties have been ordered to file their trial affidavits by 5 October 2018.  The matter should proceed to a final determination late in 2018 and I am satisfied that the present progression in the time that the child spends with her mother is sufficient until such time as the final determination of the matter.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 March 2018.

Associate: 

Date:  21 March 2018