JOHNSTON & PRITCHARD
[2010] FMCAfam 942
•4 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOHNSTON & PRITCHARD | [2010] FMCAfam 942 |
| FAMILY LAW – Parenting – interim parenting orders – child aged four – order for return of child – history of shared care and conflict between parents – father raises concerns about mother’s care of child and mental stability – various professionals have been consolidated – parents and child have been referred to Redbank house – difficulties of making any findings – appointment of independent children’s lawyer and orders for psychiatric evidence. |
| Family Law Act 1975, s.60CC |
| Applicant: | MS JOHNSTON |
| Respondent: | MR PRITCHARD |
| File Number: | SYC 4591 of 2008 |
| Judgment of: | Walker FM |
| Hearing date: | 3 August 2010 |
| Date of Last Submission: | 3 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mills |
| Solicitors for the Applicant: | Clive Mills & Associates |
| Counsel for the Respondent: | Mr Paltos |
| Solicitors for the Respondent: | Paltos & Co |
THE COURT ORDERS THAT:
The child, X born (omitted) 2006 is to be returned to the mother forthwith.
The current arrangements, outlined in paragraph 11 of the Respondent father’s affidavit sworn 3 August 2010, are to recommence as of Monday 9 August 2010. Accordingly:
(a)The child is to live with the mother.
(b)The child is to spend time with the father as follows:
(i)From Monday after preschool at 5.30pm (or 8.30am if he is ill), to 7.30pm on Tuesday.
(ii)From 8.30am on Friday to 5.30pm on Saturday
The mother is to forthwith attend upon her treating general practitioner and request a referral to the psychiatrist she has previously seen for the purpose of obtaining a report relating to her present emotional well-being and her compliance with medication
By consent, both parties keep the other informed at all times of their current residential address, mobile telephone number, Skype address, facsimile number and email address.
By consent, the parties communicate by email in relation to the welfare of X.
By consent, each party be and is hereby restrained from removing and/or causing and/or allowing the child to be removed from the Commonwealth of Australia.
Liberty is granted to each party to restore the matter to the list.
THE COURT FURTHER ORDERS THAT:
By consent, orders be made in accordance with the document titled, “Minute of Proposed Order appointing Court Expert”, dated 4 August 2010, signed by the parties and their legal representatives.
The matter be adjourned to 24 February 2011 at 10.00am before me for hearing for no longer than two days.
The Applicant pay the trial fee or obtain a waiver of that fee in accordance with, and within the time specified in the Federal Magistrates Court Regulations 2000.
Each party file and serve any affidavits on which they intend to rely at hearing by no later than 4.00pm 14 working days prior to the hearing.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.
The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET within 7 days all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
The Independent Children’s Lawyer has leave to issue over five subpoenas.
Leave be granted to the Independent Children’s Lawyer to photocopy all relevant documents produced in answer to subpoena for the purpose of forwarding them to the Part 15 Rule 9 expert. Such leave is granted on the condition that the copying party returns all photocopies to the court at the conclusion of the matter for destruction.
THE COURT NOTES THAT:
The Mother undertakes that she will visit her general practitioner at least fortnightly.
The father has indicated he will meet the costs of Dr W.
These Orders have been amended by consent pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules to show new Order 2 in lieu of old Order 2 dated 4 August 2010.
IT IS NOTED that publication of this judgment under the pseudonym Johnston & Pritchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4591 of 2008
| MS JOHNSTON |
Applicant
And
| MR PRITCHARD |
Respondent
REASONS FOR EX TEMPORE JUDGMENT
This is a parenting matter where the mother seeks orders for the recovery of the four year old child of the parties who was retained by the father on 24 July 2010. In her Application filed 27 July 2010 the mother also seeks various interim orders. In submissions her legal representative however advised the Court that if the child was returned to her care, and if she was satisfied that the father would not again retain the child, she would accept the present parenting arrangement continuing.
The father seeks orders that the child, X, known as “X”, remain in his care. In his Response, he sought orders that he have sole parental responsibility for the child and that the mother spend supervised time with X at a contact centre. At hearing, he seemed to modify his position somewhat, indicating that if there was a psychiatric assessment of the mother, he would not object to X spending time with her other than in a supervised contact centre as sought by him in his Response.
Brief history
The parents married on (omitted) 2005, and they separated on 15 April 2008. X was born on (omitted) 2008.
The father is now in another relationship. He and his present partner have a daughter, Y, who is aged nine months. He is employed as a (occupation omitted) and says that he works from home where he has a (business omitted).
The mother’s recent employment history is not totally clear although the evidence indicates that she is presently working. A lot of the conflict between the parents seems to relate to caring arrangements for the child at times the mother says she needs to work. In her affidavit she says she will be commencing a new job on (omitted) 2010. No details were provided either of her present employment or her new employment. Her legal representative explained that her affidavit was prepared hastily because of the time constraints in the circumstances of the matter.
The current orders
The current orders are those that were made by consent on 8 December 2008. They provide for the parents to have equal shared parental responsibility for X, for X to live with his mother and for the father to spend time with him initially each Monday from 9.00am to 6.00pm and each Thursday from 9.00am to Friday at 7.00pm, and each alternate Sunday from 10.00am until 6.00pm. The orders provide for the father’s time increasing as X gets older.
The orders provided, for example, that when X was three, he spend time with his father on a two-weekly cycle, in week 1, Sunday at 10.00am to Monday at 7.00pm, Thursday at 9.00am to Friday at 7.00pm, and in week 2 Monday at 9.00am to 7.00pm and Thursday 9.00am to Friday 7.00pm. It was noted in the orders that the parents agreed to review the arrangements with the assistance of a mediator when X turned four, with a view to implementing an arrangement for him to spend equal time with each of his parents.
Subsequently, the parents have, in fact, attended mediation. The father says a need to change arrangements arose, in part, because the mother’s working commitments changed and she requested changes to accommodate that. The parents agree that at the beginning of this year the arrangements were somewhat different to those provided for in the orders and they involved the father spending time with X, it seems, a couple of days and a couple of nights each week, and some of this time involved the father commencing time with X from after the pre-school at which X now attends. It seems that X attends pre-school on Mondays and Wednesdays, although that was not totally clear in the material that was before me.
What is clear, though, is that since the beginning of July this year there were further arrangements introduced between the parents and the father says, again at the request of the mother, X was to be with him from Monday after pre-school to 5.00pm, or 8.30pm if X was ill, until Tuesday at 7.30, Friday 10.00am to Saturday 5.30pm. The father says the change to Saturday occurred at the mother’s request because she was working on renovations at her home. The mother certainly gives evidence about current renovations that are being carried out there. So it seems that the present arrangement involves X being with his father during the day on Tuesdays, Fridays and Saturdays, and on Monday and Friday nights.
The issues before the Court
The father says that X is at risk in his mother’s care, because he says he is concerned that she cannot provide for his basic physical needs. He expresses a concern about the mother’s mental stability. The other concern he expresses is that if the mother thinks that things are not going well for her she might go overseas. He says she has family in (country omitted).
The mother says that she has been X’s primary carer and that the child should be returned to her, implying, of course, that arising from that is a particular relationship between herself and X, or attachment. The father disputes that the mother has been X’s primary carer.
The evidence
The evidence before the Court was the mother’s affidavit sworn on 27 July 2010, part of an affidavit sworn by the mother on 7 August 2008 in earlier proceedings, the father’s affidavit sworn 3 August 2010 and a memorandum of a family consultant dated 3 August 2010.
These are interim proceedings and the Court, in this matter, has little, if any, independent evidence before it. The mother’s legal representative says that her material was prepared very quickly and acknowledges that there are some gaps in it. I cannot say that there are gaps in the father’s affidavit. It is very long, too long really in the circumstances of interim proceedings where the Court really needs to be able to identify the issues quickly in order to make orders most likely to reflect the best interests of the child in the circumstances.
The Court has no opportunity to test the evidence of either of the parties by cross-examination in these proceedings. It is therefore very difficult for the Court to make any findings in such circumstances. The Court obviously has to be very careful in the approach it takes and, given the issues raised, consider orders which can address those issues, at least in the short term, while more appropriate independent evidence in particular, is obtained.
The relevant law
Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
The evidence before the Court, which I have outlined, particularly in the history of the matter, indicates that each of X’s parents has been involved in his care since he was very young. The mother was working as a (occupation omitted) around the time of his birth. She says in her 2008 affidavit that she continued to see clients, but that she reduced her work and adjusted it to X’s routine. She says that up to the time X was about 14 months she worked for somewhat in excess of 30 hours a week, although she says she did this mostly at night when X was asleep. She says at about that time, when X was 14 months, she employed a nanny and she sets out in her affidavit times during the week when she says that the father was responsible for X’s care.
The father’s counsel indicated that the father disputed much of what was said in that affidavit of the mother. However what is relevant is the mother’s account that the father was involved in the child’s care at this time.
The parents separated when X was very young, not quite two years. Since shortly after separation X has moved quite often between his parents. For a time, at least, there was an arrangement for equal care between them.
The mother says that at a particular time, during 2008, she became concerned because when X came back to her he would scream and become very clingy. She says she consulted a child psychologist called Ms J whom she says expressed the opinion that X’s behaviour indicated separation anxiety.
The father, in his affidavit, says that he attended upon Ms J on one occasion, but that X was not present on that occasion. Ms J did not have an opportunity to observe X with him. The father says he does not accept the reported opinion of Ms J, in that it was based on an assessment that the mother was the child’s primary carer and also because X’s behaviour had not been observed with him.
Clearly, around this time, if not before, there was a dispute between the parents about X’s parenting arrangements. It is not disputed by the father that around the end of June 2008 he retained X in his care after X spent time with him. The mother says that on this occasion the father refused to allow her to spend time with X for a period of over four weeks. The father denies this length of time. These are matters which the Court cannot make any findings about today except to note that the retention of the child at that time is not disputed.
Subsequent to this, proceedings were instituted between the parents and consent orders were made on 8 December 2008.
The history then indicates that X spent considerable time with each of his parents from a very young age. It will be for an appropriately qualified expert to consider the impact on the child of the varying arrangements which he has experienced from such a young age in the context of the obvious conflict between his parents. The Court is not today able to make a finding about whether or not the mother has been X’s primary carer.
It is likely that X has a close relationship with each of his parents, although the nature of his attachments, again, is something that would need to be considered by an appropriately qualified expert. Subject to a consideration of the risk issues raised by the father, it is likely that X would benefit from a meaningful relationship with each of his parents, so far as the Court can tell from the material before it, at this time.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father asserts that risk arises because of the mother’s behaviour at various times, particularly when she has complained that the child is ill. The father also questions the mother’s mental stability. He refers to an occasion on 15 June 2009, just over a year ago, when he says he noticed bruises on X’s legs. The father also says that he is concerned that the mother is having difficulties attending appropriately to X’s physical care.
The father says the mother has complained that the child has severe illnesses when he doubts that this is the case. The particular illness he refers to is gastroenteritis. Much of the father’s affidavit concerns this issue of whether X is in fact at ill at particular times as has been reported by the mother.
The father refers to an occasion, 14 May this year, when the mother told him X was suffering from gastroenteritis and when he said that he observed no signs of this, although he says X did say to him that he had a sore tummy. The father says he and his partner took X to a doctor on the following day and the doctor provided a medical certificate, annexed to his affidavit, saying the child was not suffering an illness on examination.
From the email exchanges between the parents at this time, part of the dispute, at least on this occasion, seemed to arise because the mother was saying to the father that he would need to be prepared to look after the child on the following Monday, that is some days after she reported X ill, because she would not be able to take X to work or to go to work herself if X was ill.
On another occasion when the mother said X was ill with gastroenteritis, the father and his father took X to the regular doctor. That doctor said that there it was a normal gastro examination, but that the child appeared to be recovering from an upper respiratory tract infection. So, presumably, there were some symptoms, although different symptoms from what the mother had described.
The father suggests in his affidavit that X complains about symptoms when the father cannot identify them. For example, that the child might complain about this tummy or about headaches. It can possibly be inferred from the father’s evidence that he is of the view that for some reason the mother causes the child to think that he has symptoms of illness. At the same time the father says in his affidavit that on one occasion X complained to him of a headache, which the father then reported to the mother. The mother than organised a hospital attendance and as a result, the child was diagnosed with a medical problem and admitted to (omitted) Hospital and kept there for some three days. There seems to be no complaint about the mother’s actions on that occasion or any suggestion that it was not necessary.
The father complains that X has come to his care in the morning in his pyjamas and apparently still hungry because he eats food that the father gives him. He says that on one occasion X came and that his pants were wet. It is agreed between the parties that toileting has been a particular problem for X. It seems that X has suffered from both soiling and enuresis. There was also a dispute between the parents around whether X had diarrhoea at particular times. On one occasion X was diagnosed with a urinary tract infection, and the father’s evidence is that when this was treated, some bladder control at least improved.
The father gives evidence of an email of March 2010, which he sent to the mother, and this probably was about the time, I think, that Ms J was consulted. That email refers to the child’s toileting problems, including soiling. He says:
I am well aware that there are a range of possible causes for X’s current behaviour, one of them being Y’s birth.
The father refers to X also displaying defiant behaviour and appearing to be quite angry at times. The mother, in those email exchanges, also reported as saying that X shows distress when he is out of her sight. The parents agreed that they and X have been referred to Redbank House.
There are two particular incidents about which the father expresses his concern in his affidavit. He says that in late 2009 he arrived at the mother’s home to collect X and she answered the door saying that she did not know where X was, as she had been upstairs before she came to the door. The father says he could hear screaming from the garage and found X locked in the car with the pet dog and with a dirty nappy. Understandably, such an incident as reported, would be of significant concern to the father.
The father also refers to a conversation he had with X on 15 June 2009 when X would have been about three. That conversation is set out at paragraph 72 of the father’s affidavit where the father says:
On Monday, 15 June 2009, X was in my care from after day care at around 4.30 pm. After dinner, I was helping X change into his pyjamas when I observed he had about six or seven bruises on his legs. I had a discussion with X with words to the following effect: “X, where did you get the bruises from?”, “On the chair.” “Which chair?” “The chair at Mummy’s house.” “How did you get the bruises?” “Mummy hit me with a bat.”
The father has annexed a photocopy of a photograph of bruising to his affidavit. There is no indication that he took X to a doctor. There is nothing before the Court to assist in interpreting the marks on X’s legs. There is no other allegation the father makes of physical harm caused to X by the mother subsequent to that.
In submissions, the father’s counsel referred to what she described as bizarre behaviour by the mother on an occasion when the father said to her, just before the middle of this year, that he and his partner and X would be travelling to (country omitted) for three weeks in June 2010. The subsequent exchange between the parents appears to indicate that one concern of the mother at the time was about the assistance she would have with X’s care when she was working and while the father would be away.
The mother, in one of her emails, says that she had called the Department of Community Services - and I might say that both of the parents have called the Department of Community Services over time in this matter - looking for help for someone to care for X if he became ill on days when the father would otherwise be caring for him. The fact that the mother did this seems hardly appropriate, but at the same time, it is done in the context of emails which reflect the mother’s apparent upset at the father’s ability to travel overseas during a time when the mother felt she was compelled to work because of difficult financial circumstances. It is also of course significant that the father at this time was very prepared to leave the child in the mother’s sole care.
The father says there were precipitating factors in his decision to retain X in his care on 24 July this year. He says one of these was a telephone call from the mother’s sister. His evidence is that the mother is estranged from her sister. He says the phone call included the sister making assertions about the mental state of the mother. In the circumstances the Court is unable to give weight to such a conversation. Another reason the father gives for retaining the child is his concern about facilities at the mother’s home.
The father says he contacted the Department of Community Services helpline on 24 July 2010 and that his proposed action was approved by a male officer who answered the call he made to the helpline. The father does not give evidence of what he said to that person and he does not give evidence specifically either of what that person said to him.
The father, in his affidavit, said that the mother came around on 24 July to his home demanding X’s return. He says she remained outside the residence for approximately 45 minutes trying to persuade him to return X to her care. He says she banged on the door, shook the window and called out for X. He says she depressed the car horn for a long period of time and said abusive things to him. The father says he video-taped the mother from inside the house during this period of time and that the child was distressed. I find it incredible that if the father is making a case that he has some concern about the mother’s emotional stability that he would video her at such a time when she is seeking the return of her child who is being withheld by him. It is hardly surprising too that in the circumstances described above the child was distressed.
In support of his concern about the mother’s mental stability, the father annexed an email from the mother dated 6 March 2010. In this email the mother refers to what she describes as an anxiety disorder she says she suffered as a result of the separation. She says she has consulted a psychiatrist. The mother’s legal representatives made reference to the mother’s visit to her consulting psychiatrist in early 2009 to check her medication. The mother did not refer to this in her affidavit, however her solicitor tendered a document dated 2 August 2010 signed by Dr S, whom the mother says is her regular general practitioner with qualifications in psychology.
This report refers to a past history of the mother experiencing attention deficit hyperactive disorder, depression and hypertension. It also lists four medications that the mother is presently taking. The document comments:
Ms Johnston is compliant and well controlled with the above medications.
The father’s counsel objected to the tender of this document and said little weight should be given to the comment to which I have just referred. There seems to be no issue that it is a document from the mother’s general practitioner. It is on letterhead. It is signed by the doctor. For this reason, the Court has accepted it into evidence. The doctor is not available to give any evidence about the basis of the opinion expressed. For that reason, while the Court would not be able to find as a result of the document that the mother’s behaviour is not affected by a mental health history, it is something which needs to be considered in the context of the very limited information before the Court at this time.
The memorandum of the family consultant who saw the parties on 3 August 2010 was in evidence. There are obvious limitations in what she could explore in the circumstances. She lists as her impressions:
At face value, there appears to be no reason not to restore X to the mother’s care.
She also says:
Given the strength of the father’s allegations, the Court may wish to consider that the mother’s care is monitored or supervised on a temporary basis.
It is obvious having considered all these matters that the Court, at some point, is going to need evidence of the mother’s mental state and its impact, if any, on her behaviour and the extent to which any problems she may have are addressed by her medication. At the same time, the Court notes the history of conflict between the parents and the very likely impact this conflict has had on the child and the possibility of it being reflected in the behavioural difficulties which have been described above. Certainly, the behavioural problems that both the parents describe do indicate that this child is emotionally vulnerable. This of course is also indicated by the referral to Redbank House.
The father, in his affidavit, also refers to attendance by his partner upon a child psychologist, Ms R, in March this year, at a time that X was regressing in his toileting and exhibiting other behavioural issues. He says that Ms R indicated that X’s behaviour indicated anxiety, similar to what Ms J’s comments were reported by the mother before. Ms R, however, recommended that X may benefit if the parenting arrangements were amended or changed to provide block periods of time to remove the numerous change-overs that he was experiencing.
It seems that the referral to Redbank House had not be able to go ahead because the matter is currently being litigated. The evidence indicates that a number of professionals have seen the parents and X over time – two psychologists and also a consultant at the Family Relationships Centre who apparently was the person who referred the parents to Redbank House.
There is no evidence before the Court arising from all these consultations that there is a particular concern about X in the mother’s care as such. There is certainly a concern about the dynamic that is occurring.
The Court would have concerns about X’s emotional wellbeing at this time. However on the evidence at present, the Court would not find that the behaviour of either one of the parents more than the other has contributed to the difficulties which he has been experiencing. This is a matter where there needs to be - and I think that is agreed - a report by a child and family psychiatrist, especially given that it seems as if the parents and X are not now able to attend Redbank House.
Additional considerations
Section 60CC(3)(a) requires the Court to consider 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
Certainly, at this stage, X is too young to express views. There is nothing indicated there, even though X is only four, however, that he does not want to spend time with either of his parents.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
This factor has been discussed above.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
This is something that has to be of concern. The Court has not specific evidence about it. The Court has referred to indicators that X has experienced anxiety, very likely in the context of the transitions between his parents.
The Court would have to be cautious about any lengthy separation of the child from his mother, given the state of the evidence, or for that matter from his father, given the involvement that they have both had in his care and given that both parents have given evidence of child psychologists they have attended.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and 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 and Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Issues I need to consider about parenting capacity and parental responsibility are touched on by all the things I have said. The Court, at this time, on the present evidence, would have a concern at the ability of either of the parents to be able to focus primarily on the child, rather than some of their own issues and expectations. Obviously, to some extent, this has to be one of the causes of the child’s potential distress at this time.
Summary
The Court needs to balance all the considerations referred to above in the context of this being an interim hearing. The Court deems it as necessary that after certain steps are taken the matter will come back before the Court for hearing on an expedited basis. The Court will appoint an Independent Children’s Lawyer as recommended by the family consultant and make orders in relation to a child and family psychiatrist, as has been indicated. The Court will make an order for X to be returned to his mother’s care. The Court will make an order for the current arrangements to continue, noting that these arrangements, which I have outlined in some detail, mean that X spends a lot of time with his father who can observe how X is doing, as well, of course, as the mother.
I think the mother acknowledges that there needs to be some cogent evidence before the Court of her current medication and of her current level of control of the various problems and issues which have been referred to, particularly the depression or anxiety which she has suffered as well as ADHD.
The Court will make an order that the mother is to attend upon her treating general practitioner and request a referral, preferably to the psychiatrist she has previously seen for the purpose of obtaining a report in relation to her present emotional wellbeing and her compliance with medication.
I will also require an undertaking from the mother that she will visit her general practitioner at least fortnightly.
Now, there were other matters, and I understand – and the overseas issue, that the father was concerned about, I think, was addressed because there was consent to orders being made in the father’s response to order 8 and 9.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Walker FM
Associate:
Date: 1 September 2010
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