Lake and Lake

[2015] FamCA 1175

FAMILY COURT OF AUSTRALIA

LAKE & LAKE [2015] FamCA 1175

FAMILY LAW – INTERIM PARENTING – PARENTAL RESPONSIBILITY – SUPERVISION – Where the parents agree that the father’s time should be supervised due to his health issues and previous cocaine addiction – Where the father’s time has previously been supervised by the mother or the father’s mother – Where the mother is no longer willing to supervise and the father’s mother is presently not available to supervise – Where both the children have significant health issues and one suffers from anxiety which impacts his ability to deal with change of his routine – Where the mother seeks interim orders for sole parental responsibility in relation to issues pertaining to health and medical care, and for the children to have supervised time with the father –Where the father sought orders for joint parental responsibility – Where the mother, being the children’s primary carer, has demonstrated a high degree of parental responsibility in managing the care of the children post separation – Orders made for sole parental responsibility in favour of the mother in relation to issues pertaining to health and medical care – Orders made that the children spend limited supervised time with the father with a professional supervisor and for such time to increase if the father’s mother become available.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Ms Lake

RESPONDENT: Mr Lake

INDEPENDENT CHILDREN’S LAWYER: Anne Connor, Legal Aid NSW

FILE NUMBER:	SYC	4778	Of 2012		2012
DATE DELIVERED:	17 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 12 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Ede Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cohen

SOLICITOR FOR THE RESPONDENT: Broun Abrams Burreket

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Millar	Ms Connor
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:	Legal Aid New South Wales

Orders

Pending Further Order

1. Orders are made as set out in exhibit W1:

   1.The Wife have sole parental responsibility for the Children in relation to issues pertaining to health and medical care.

2. That the children of the marriage, being B, born … 2005 and C, born … 2007 (“the Children”) live with the Wife.

   3.The Children spend time with the Husband supervised by a supervisor from Phoenix Rising or Dial-an-Angel (“the supervisor”), at the sole cost of the Husband, as follows and subject to paragraphs 5 and 7:-

   a.Each alternate Monday from the conclusion of school until 6.30pm;

   b.Each alternate Sunday from 9.00am until 1.00pm;

   c.On B’s birthday, being … each year from 3.30pm – 6.30pm;

   d.On C’s birthday, being …, from the conclusion of school (or 3.30pm if it does not fall on a school day) until 6.30pm

   e.On Father’s Day from 9.00am until 4.00pm

   4.In addition to the time spent in paragraph 3 above, the Husband be at liberty to spend time with the children by attending their team sporting activities as and when they occur (presently occurring on Saturdays and Thursdays), while the children are in the Wife’s care.

   5.That during school holiday periods and upon giving the Husband not less than two weeks’ notice, the Wife may notify the Husband of her intention to spend block holiday time with the children for up to one half of each school holiday period and the Husband’s time with the children is suspended during such period.

   6.That in the event that the Wife suspends the children’s time with the Husband pursuant to the preceding order, the children shall spend make-up time with the Husband during the school holiday periods, at such times as are agreed between the parties.

   7.In the event that the children’s time with the Husband pursuant to paragraph 3(b) falls on Mother’s Day, that time is suspended and shall occur instead on the Saturday immediately prior to Mother’s Day.

   8.That, in the event that the Husband’s mother is available to supervise the Husband’s time with the Children, the children shall spend additional time with the Husband as follows:-

   a.Each Monday during school term from the conclusion of school  until 6.00pm;

   b.Each alternate Saturday (such time to occur on the same weekend as paragraph 3(b) above) from a time agreed between the parties and failing agreement, from 9.00am until 6.00pm;

   c.On Christmas Day from 9.00am until 3.00pm.

3. Orders are made, by consent, pursuant to paragraph 17(a) to 17(e) of the mother’s Application in a Case filed 26 October 2015, as follows:

   17. The Husband, in his personal capacity and as director of D Pty Ltd is restrained from doing any or all of the following acts or omissions:

   a. Selling, transferring, disposing of, or otherwise assigning the shareholdings, loan accounts and other interests of the parties or either of them in the entities;

   b. Further mortgaging or encumbering the shareholding, loan accounts and other interests of the parties or either of them in the entities;

   c. Altering or in any way causing to be altered the current shareholding and directorships of the company;

   d. Resigning or permitting his removal as a director of the company or taking any steps or doing any acts which could cause him to be removed from or to resign from the position of director of the company;

   e. Amending or in any way altering the memorandum and articles of association of the company or issuing or causing to be issued any further shares or altering the rights attaching to any shares in the company.

4. The balance of the mother’s Application in a Case filed 26 October 2015 and the father’s Response to an Application in a Case filed 11 November 2015 is adjourned to 10.00 am on Thursday 3 December 2015 unless consent orders resolving those remaining issues are provided to the Associate for Justice Le Poer Trench prior to that time.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4778/2012

Ms Lake

Applicant

And

Mr Lake

Respondent

And

Independent Children's Lawyer 

REASONS FOR JUDGMENT

Introduction

1. This is an application for interim parenting orders and interim financial orders. I will first address the interim parenting aspect of the case as that is what was addressed when the matter was before me on 12 November 2015.

2. The interim parenting orders address arrangements for the care of the two children of the parents’ relationship. They are B born in 2005 and C born in 2007.

3. This is a case which presents a many-faceted dilemma for the parents and the Court. As will be seen later the child C suffers from anxiety and that impacts upon his ability to deal with change to routine or familiar persons and places. The condition also presents an added burden for Ms Lake (“the mother”) in caring for C.

4. The father is Mr Lake. He has suffered from addiction to cocaine. He now professes to be free from that addiction. The father was diagnosed with Bipolar 1 Disorder in or about 2009 and has been under the treatment of his psychiatrist, Dr E, since 9 June 2009. The father is currently taking medication for the treatment of his Bipolar Disorder.

5. The father’s mother has been able to supervise the father’s time with the children at times since the parents separated. Her ability to continue to do so is unknown at this time. She did not give evidence in the case.

6. The father is a beneficiary under a trust which will provide him with a substantial payment in December this year. The financial aspects of the case will address matters arising from that payment.

7. The mother commenced the subject application on 26 October 2015 by filing an Application in a Case which, inter alia, sought interim parenting orders. The father advised the Court he did not oppose those orders, however, at the hearing on 12 November 2015 the mother tendered a minute of order upon which she moved. That minute was marked as exhibit W1. There are aspects of that minute which the father does oppose.

8. The Independent Children's Lawyer provided a minute of order which was marked exhibit ICL1. I will address that minute later in these reasons.

9. There currently are not any parenting orders. The parties have been able to make arrangements for the children to see the father, however, the mother says there are some unsatisfactory aspects to those arrangements which she now seeks to have addressed and resolved.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. The parties commenced cohabitation, according to the mother, in May 2001 and according to the father, in January 2002. They were married in 2005. The mother says the parties separated on 3 July 2011 and the father says that the parties separated in February 2011.

3. There are two children of the marriage, B and C. Both children attend school.

4. Both children have significant health issues. In this respect, C’s health issues are very demanding of the mother’s time and medical practitioners.

5. The father has had an addiction to cocaine. He says this arose because he found that it relieved some of his medical conditions. The father was diagnosed with Bipolar 1 Disorder in 2009 and is currently taking medication for this condition. The father has been receiving treatment from Dr E, a psychiatrist.

6. Following separation the parties have pursued resolution by negotiation. They have both been represented. The father has suffered periods of illness when he has not been available to spend time with the children. He has also been hospitalised.

7. At one time post separation the father was represented by Mr Jamieson, a solicitor, who informed the mother’s solicitors in June this year he was ceasing to act as he formed the opinion the father was incapable of giving instructions.

8. Following separation, the father’s time with the children has been supervised by either his mother or the mother. The mother no longer wishes to supervise the father’s time with the children.

9. The father has been unable to spend time with the children on a significant number of occasions since the separation. This has largely been due to his medical condition or the inability to have his mother supervise. The father’s mother has spent time with the children on occasions even where the father has not been available or only had a limited capacity to spend time with the children.

Submissions

The Mother’s Submissions

1. The minute of order contained in exhibit W1 sought the following orders:

   1.   The Wife have sole parental responsibility for the Children in relation to issues pertaining to health and medical care.

   2.   That the children of the marriage, being [B], born … 2005 and [C], born  … 2007 live with the Wife.

   3.   The Children spend time with the Husband supervised by a supervisor from Phoenix Rising or Dial-an-Angel (“the supervisor”), at the sole cost of the Husband, as follows and subject to paragraphs 5 and 7:-

   a.   Each alternate Monday from the conclusion of school until 6.30pm;

   b.   Each alternate Sunday from 9.00am until 1.00pm;

   c.   On B’s birthday, being … each year from 3.30pm – 6.30pm;

   d.   On C’s birthday, being …, from the conclusion of school (or 3.30pm if it does not fall on a school day) until 6.30pm

   e.   On Father’s Day from 9.00am until 4.00pm

   4.   In addition to the time spent in paragraph 3 above, the Husband be at liberty to spend time with the children by attending their team sporting activities as and when they occur (presently occurring on Saturdays and Thursdays), while the children are in the Wife’s care.

   5.   That during school holiday periods and upon giving the Husband not less than two weeks’ notice, the Wife may notify the Husband of her intention to spend block holiday time with the children for up to one half of each school holiday period and the Husband’s time with the children is suspended during such period.

   6.   That in the event that the Wife suspends the children’s time with the Husband pursuant to the preceding order, the children shall spend make-up time with the Husband during the school holiday periods, at such times as are agreed between the parties.

   7.   In the event that the children’s time with the Husband pursuant to paragraph 3(b) falls on Mother’s Day, that time is suspended and shall occur instead on the Saturday immediately prior to Mother’s Day.

   8.   That, in the event that the Husband’s mother is available to supervise the Husband’s time with the Children, the children shall spend additional time with the Husband as follows:-

   a.   Each Monday during school term from the conclusion of school  until 6.00pm;

   b.   Each alternate Saturday (such time to occur on the same weekend as paragraph 3(b) above) from a time agreed between the parties and failing agreement, from 9.00am until 6.00pm;

   c.   On Christmas Day from 9.00am until 3.00pm;

2. Order 1 as sought by the mother seeks that she have sole parental responsibility for the children in relation to issues pertaining to health and medical care. In submission the mother drew the Court’s attention to paragraphs 15 and following of her affidavit in support of this order.

3. It is the mother’s case that C suffers from “severe anxiety and obsessive compulsive disorder.” She says B has dyslexia and learning difficulties.

4. C currently receives speech therapy, which is recommended should occur weekly. The mother is unable to afford that treatment.

5. C is under the care of a paediatric gastroenterologist, Dr Jackson, in relation to recurring constipation. The mother has to monitor this carefully and provide appropriate diet and hydration. C has been hospitalised with this condition.

6. In addition to the above the mother reports that C suffers from oesophageal reflux, eczema and severe headaches.

7. C currently attends upon Dr F, a psychologist. He has also seen Dr G, a psychiatrist, this year. C takes medication prescribed by Dr G.

8. The mother claims that her supervision of the time the father spends with the children is unsatisfactory for a number of reasons.

9. In her affidavit the mother particularises C’s behaviour associated with his psychiatric condition. These behaviours portray a very difficult management task for the mother. C was hospitalised in July 2014 as his behaviour became unmanageable.

10. In relation to B, the mother sets out detail of his particular circumstances and conditions at paragraph 55 and following of her affidavit. B suffers from dyslexia he has attended therapy for his learning difficulties. He attends upon a paediatrician. He has taken a course of Ritalin medication, however, it proved unsatisfactory and it was discontinued. He suffers from “chronic severe allergic rhinitis and an allergy to dust mite”. B has suffered as a result of the manifestation of C’s medical conditions.

11. B had attended upon Ms H, a psychologist, in 2014. Since 2015 he has been seeing Ms I, a psychologist, who works in conjunction with Dr G.

12. The mother submits that in the father’s affidavit sworn on 11 November 2015, he does not oppose the action taken by the mother in relation to the children’s medical conditions however he is, overall, critical of the mother.

13. If the order sought by the mother was granted on an interim basis, she agrees to keep the father informed about treatments and medical procedures undertaken by the children.

14. The mother raises concerns about the father’s assertions that he is now free of drug use. She points to paragraph 36 of his affidavit and says the father uses the words “Since I have ceased taking cocaine regularly in July 2015”. She says that this does not suggest total abstinence. I note that the father points to paragraph 34 of his affidavit where he does say “I no longer use cocaine and currently have no desire to do so.”

15. In support of her case the mother relies upon “notes” produced by Dr F. These are assumed to be notes made during sessions with C. In particular, reliance was placed on a note made on 6 August 2015 where she noted “It was my hypothesis that the intensity and frequency of C’s anxiety was connected to events, particularly new ones, that presented themselves in his everyday functioning”. The mother submitted that, as a consequence, C having to deal with a new supervisor from time to time would provoke his anxiety.

16. Attention was drawn to paragraph 92 of the mother’s affidavit. There she detailed the number of times the father had cancelled his time with the children. There are a significant number of times that the father was unable to attend on time with the children this year.

17. The father’s mother is not presently available for supervising. The mother points to the cost of paying for supervision and raises a concern about the impact upon the child support payments which the father pays. I note however, in relation to the financial issues yet to be decided, that there appears to be common ground that the father is about to receive a substantial sum as a distribution from a trust.

18. The mother submits that she has no objection to the father’s mother being the supervisor of the father’s time with the children. She has a concern that paid supervision will lead to different supervisors being present and that this will be a problem for C in particular, due to his anxiety and also his difficulty in dealing with change.

19. The cost of privately supervised time is significant. The evidence is that three hours costs $240 on Saturday and $270 on Sunday. On weekdays, the charge is $210 for three hours.

20. The father has a child support payment of $207 per week under the current assessment. Based upon his current Financial Statement, he could not afford to pay the cost of private supervision.

21. In determining what time the children spend with the father, and the circumstances in which they spend that time, the mother submits that the Court should take into account the mother’s circumstance of working two days per week and her having two very demanding children to care for virtually full time on a limited budget.

The Father’s Submissions

1. The father submitted that he had been prepared to accept the proposal for the children to spend time with him as set out in the Application in a Case filed by the mother on 26 October 2015. He said that he had been met with the minute of order contained in exhibit W1 when he arrived at Court on 12 November 2015 for the hearing. There is opposition to the sole parental responsibility order sought by the mother.

2. Having said that, the father relied on his Response to the Application in a Case. He filed that document on 11 November 2015. In that he sought equal shared parental responsibility for the children. He sought that the children live with the mother and spend time with him each alternate Saturday from 9.30 am to 5.00 pm. In addition he sought each alternate Sunday, each Wednesday after school until 6.30 pm and other special days. He proposed that his time be supervised by an employee of Phoenix Rising or Dial an Angel. The father sought those orders as interim orders.

3. The father accepted the submission made by the mother that time spent by the children with him on Sunday affects the children’s readiness for school on Monday.

4. In relation to the mother’s application for sole parental responsibility, the father says he has effectively been excluded from any decision making about the children since the separation. The father raised a concern about the number of medical practitioners that the children have attended upon since the separation. The father has not been provided with reports from the medical practitioners.

5. The father submitted that his evidence is unequivocal that he ceased taking cocaine in July 2015. The father is medicated for his anxiety disorder.

1. It was submitted the father has exercised insight and sensitivity in being able to advise the mother when he is not fit to see the children. In that way, he has acted responsibly.

2. In relation to Dr F, the father says he has not had an opportunity to see Dr F for some time.

3. In relation to supervision by his mother, the father says he is currently in dispute with his mother. However, he is hopeful that will change. He can afford the cost of supervision once he receives the distribution from the trust in December.

4. The father confirmed that he consents to the appointment of a single expert, in the parenting case, as proposed by the Independent Children's Lawyer and the mother.

The Independent Children’s Lawyer’s Submissions

1. The Independent Children's Lawyer provided a minute of order which she supported in submission. That minute provided for the father to spend time with the children in a three week cycle. In that cycle she proposed the children spend every first and second Saturday from after sport with the father for a number of hours. In that same three week cycle she proposed the children spend time with the father one afternoon after school (Monday) until 5.00 pm or 6.30 p.m. in the first and third weeks.

2. The Independent Children's Lawyer also proposed that the mother could vary the weekend upon which the children would not spend time with the father in the three week cycles on four occasions each year.

3. The Independent Children's Lawyer informed the Court that she did not oppose the making of orders 4 to 8 as sought by the mother in exhibit W1.

4. In relation to the financial orders sought in the mother’s application in a case filed 26 October 2015, the father advised the Court that he did not oppose orders 17(a) to 17(e) inclusive.

Section 60CC Considerations

1. The only evidence touching upon the wishes of the children is that of the mother, who informed the Court that the children were disappointed when they have been unable to spend time with the father. The children are aged almost ten and eight. The weight which might normally be given to their stated wishes will be limited.

2. The children have been cared for by the mother since the separation of the parties in 2011. The children’s time with the father has been limited by his health issues and consequently whether he is well or fit enough to see the children. The evidence thus far given would support at least a tentative view that the children have a close and dependant relationship with the mother.

3. The mother has had to assume almost all responsibility for supervising the children’s extensive medical needs. This has been a very onerous task.

4. The father appears to have spent time with the children as he was able to do so. The evidence suggests he has not been able to maintain consistency in the time he spends with the children and that there have been significant periods of time with the children which have not taken place.

5. The mother raises a concern about the cost of professionally supervised time for the children. The concern relates to the ability of the father to fund the amount of time which he would like to spend with the children. Further it is possible that the high cost of the father spending time with the children could cause a decrease in the child support the father pays.

6. There is also an issue for C in having different supervisors being present on different occasions when the father spends time with the children. The mother does not oppose the father’s mother being the supervisor. She is well known to the children.

7. There is clearly a capacity problem for the father in terms of his ability to spend time with the children unsupervised. The capacity problem arises from the father’s health issues and his past use of cocaine giving rise to the possibility or relapse into the use of that drug.

8. The mother has demonstrated a high degree of parental responsibility in managing the care of the children post separation.

9. The parties are proposing to appoint a single expert to prepare a report to assist in the parenting case. The orders sought now are interim orders only.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The section provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

3. In this case there is an application by the mother to have sole parental responsibility in relation to the children’s health and medical care. Her reasons for so doing are the extensive medical needs of these children and the impracticality of being able to contact the father and secure his consent to medical treatment which may be required. The father has put the mother on notice through this case that he considers the children see too many medical practitioners.

4. The orders which both parties seek are interim orders only. The Court is without the assistance of an expert’s report at this time. The Independent Children's Lawyer supports the order sought by the mother in this regard. There are aspects of the children’s medical needs which may require quick decisions to be made. There is evidence that C was hospitalised in mid-2014 when his medical needs became chronic. The mother having to negotiate with the father about those types of matters, at this stage of the court proceedings, would add to her significant burden as the principal carer of two children with significant medical and behavioural difficulties.

5. I propose to make the order for sole parental responsibility as sought by the mother. The parties will otherwise retain equal shared parental responsibility in relation to the other aspects of the children’s lives.

Section 65DAA

1. The parties are agreed that the father’s time with the children needs to be supervised at least for the present. This means limited time and limited in a way which would not comply with the description of substantial and significant.

The Orders to be made

1. The issue here is significantly the timing and extent of time for the father with the children.

2. The orders sought by the mother do in my view provide a platform to advance the proceeding and provide a yard stick against which a recommendation by the jointly appointed single expert might recommend an increase, decrease or change of structure.

3. The orders proposed by the mother appear to me to be reasonable in the circumstances of the case as thus far revealed. The frequency will give the father an opportunity to establish a consistency of attendance which might then be built upon.

4. The orders propose that should the father’s mother become available to supervise the time that the father has with the children, then that time is significantly increased.

5. I therefore propose to make the orders sought by the mother as set out in exhibit W1.

6. There remain further issues between the parties in relation to financial matters. Those matters are addressed in the affidavits of the parties which were relied upon for this hearing. Some of the orders sought by the mother are not opposed and so I will make those orders and stand the balance to a date in the week ending 4 December 2015.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 17 November 2015.

Associate:

Date:  17 November 2015