LANGLEY & CAMP
[2012] FMCAfam 778
•31 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANGLEY & CAMP | [2012] FMCAfam 778 |
| FAMILY LAW – Children – Parenting Orders – best interests of the child – parental responsibility – equal shared parental responsibility – sole parental responsibility – mental health issues – family violence issues – where parenting orders conditional upon the father continuing with psychiatric treatment – need for supervision of father’s time with the child. PRACTICE & PROCEDURE – Whether Orders should be made on an interim or final basis – Orders relating to the parent with whom the child should live and parental responsibility should be final Orders – arrangements for father’s time with the child subject to review after 12 months. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 65DAA, 68L |
| L v T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 |
| Applicant: | MS LANGLEY |
| Respondent: | MR CAMP |
| File Number: | SYC 1018 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 July 2012 |
| Date of Last Submission: | 30 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2012 |
REPRESENTATION
| The Applicant: | In person with a Mandarin interpreter |
| The Respondent: | In person with a Cantonese interpreter |
| Solicitor for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting Orders with the exception of the following Orders are discharged:
(a)Order 2 made on 9 November 2011 (appointing an Independent Children’s Lawyer); and
(b)Order 6 made on 9 November 2011 (reserving the Applicant’s costs of that day).
Subject to Orders 3, 4 and 5, the Applicant mother is to have sole parental responsibility for the child [X] born [in] 2008 with respect to the following matters:
(a)The child’s education; and
(b)The child’s health.
The mother is to notify the father of:
(a)the school in which she is proposing to enrol the child [X] in 2013, such notification to be given to the father not less than 28 days prior to lodging the completed enrolment form with the school; and
(b)any change to the child’s school from time to time, such notification to be given to the father not less than 28 days prior to the child’s enrolment at the new school.
The mother must authorise the school which the child attends from time to time to discuss the child’s progress wit the father and also authorise any such school to provide the father with copies of all school reports, order forms for school photographs, newsletters and announcements of all school activities or other material pertaining to the child’s education.
The mother is to provide the father with details of any medical treatment which the child receives for any serious illness (being an illness or condition which requires hospitalisation or consultation with a medical specialist) and authorise the child’s treating health professionals to discuss the illness or condition with the father and provide the father with copies of any relevant correspondence and/or reports.
The parties are to have equal shared parental responsibility with respect to all other major long-term issues concerning the child.
The mother is to be restrained from removing the child’s residence from the Sydney metropolitan area without the father’s written consent.
The child [X] born [in] 2008 is to live with the mother.
And the Court Orders Until Further Order:
The child [X] is to spend time with the father as follows:
(a)Up to and including the weekend of 1 and 2 September 2012, on a fortnightly basis at the Sydney Children’s Contact Service on such day and at such times as may be convenient to the Service, with the time [X] spends with the father to be supervised by the Contact Service;
(b)Commencing on the weekend of 29 and 30 September 2012 and continuing every fourth week for a period of 12 months at the Contact Service on such day and at such time as may be convenient to the Contact Service with the time [X] spends with the father to be supervised by the Contact Service;
(c)Commencing on the weekend of 15 and 16 September 2012 and continuing every fourth week for a period of twelve (12) months for a period of time not exceeding two (2) hours with such time to take place as follows:
(i)The time is to be supervised by a private supervision service approved by the parties and by the Independent Children’s Lawyer;
(ii)Within fourteen (14) days of the date of this Order the father is to provide the mother and the Independent Children’s Lawyer with details of the private supervision service nominated by him to supervise the time;
(iii)Within fourteen (14) days of having received the father’s nomination of a proposed private supervision service the mother and the Independent Children’s Lawyer will inform each other party if they consent to the private supervision service nominated by the father being engaged to supervise [X]’ time with the father;
(iv)If either the mother or the Independent Children’s Lawyer does not agree to the appointment of the private supervision service nominated by the father then that party shall provide details of the private supervision service which she nominates to supervise [X]’s time with the father;
(v)If an alternative private supervision service has been nominated by either the mother or the Independent Children’s Lawyer then the other parties shall respond to that nomination within seven (7) days indicating whether the alternative private supervision service is agreed or not agreed;
(vi)If the parties cannot agree on a private supervision service within a further period of seven (7) days then the Independent Children’s Lawyer has liberty to relist the matter;
(vii)The parties shall complete all applications and other documents required by the private supervision service in order to engage that service within forty-eight (48) hours of request;
(viii)The parties shall comply with all reasonable directions and requests of the person who is supervising the time [X] spends with the father, and also of the director, manager or co-ordinator of the private supervision service; and
(ix)The parties shall pay all fees charged by the private supervision service in equal shares.
The father shall be at liberty to send [X] cards and presents on special occasions such as [X]’s birthday and at Christmas and the mother shall give such cards and/or presents to [X] unopened.
The mother will encourage [X] to telephone the father on special occasions if [X] is not spending time with the father on that day including but not limited to:
(a)[X]’s birthday;
(b)The father’s birthday;
(c)Chinese New Year; and
(d)Father’s Day.
Within fourteen (14) days after the date of these Orders the father is to enrol in the Positive Parenting Program (known as “Triple P”) AND for this purpose:
(a)The father is to be solely responsible for any costs of participation in Triple P;
(b)The father is to comply with all requests, directions and requirements which arise in relation to Triple P;
(c)The father is to undertake any counselling or further courses which may be recommended by the co-ordinator of Triple P; and
(d)The father is to provide the Independent Children’s Lawyer with a certificate or letter issued by the co-ordinator of Triple P confirming that the father has completed Triple P.
The time which [X] spends with the father is conditional upon the father complying with all treatment prescribed for him by his psychiatrist AND in the even that the father fails to comply with any prescribed treatment then all the time which [X] spends with the father shall be suspended.
The father is to notify the mother and the Independent Children’s Lawyer if the Community Treatment Order relating to him is discharged within seven (7) days of discharge of the Order.
The father must notify the mother and the Independent Children’s Lawyer forthwith if he is no longer attending consultations at [omitted] Community Mental health Centre.
The mother is restrained from making any critical disparaging or derogatory remarks about the father or any member of the father’s family to [X] or in [X]’s presence or hearing such order to include verbal, written or electronic means including email or text messages.
The mother is to do all acts and things necessary to prevent any other person or persons from making any critical disparaging or derogatory remarks about the father or any member of the father’s family to [X] or in [X]’s presence or hearing such order to include verbal, written or electronic means including email or text messages.
The father is restrained from making any critical disparaging or derogatory remarks about the mother or any member of the mother’s family to [X] or in [X]’s presence or hearing such order to include verbal, written or electronic means including email or text messages.
As far as possible the father is to do all acts and things necessary to prevent any other person or persons from making any critical disparaging or derogatory remarks about the mother or any member of the mother’s family to [X] or in [X]’ presence or hearing such order to include verbal, written or electronic means including email or text messages.
And it is Further Ordered that:
The Application is adjourned to Monday 15 July 2013 for further mention at 10:00 am.
NOTATIONS
A.Sydney Children’s Contact Service has agreed to continue to supervise the time which [X] spends with the father on a fortnightly basis in accordance with the arrangements currently in place up to and including the weekend of 1 and 2 September 2012 and thereafter every four (4) weeks for a period of twelve (12) months from the commencement of the four weekly cycle.
B.The parties have agreed that the paternal grandmother can attend the time which [X] spends with the father which takes place at the Sydney Children’s Contact Service.
C.The father has completed the Keeping Kids in Mind parenting program.
IT IS NOTED that publication of this judgment under the pseudonym Langley & Camp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1018 of 2010
| MS LANGLEY |
Applicant
And
| MR CAMP |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders relating to a little boy called [X]. The mother seeks Orders that [X] should live with her. The father wishes to spend time with [X] on a regular basis.
Background
The mother was born [in] 1972. She is now 40 years of age.
The father was born [in] 1968. He is now 43 years and 8 months old.
The parties commenced to live together in 2001. there is one child of the relationship, [X], who was born [in] 2008. [X] is now aged 4 years and nearly 4 months.
The parties separated on 8 January 2010 after an incident in the home when, according to the mother’s evidence, the father threatened to choke her and said that the child [X] had already died.[1] The Police were called and took the father from the home.[2]
[1] Affidavit of Ms Langley 16.2.2010 at paragraph [8]
[2] Ibid at [9]
The father was admitted to the [omitted] Community Mental Health Unit at [omitted] Hospital as an involuntary patient.[3]
[3] Ibid at [16]
It is the mother’s evidence that the father had suffered from a mental illness for a number of years and had previously been hospitalised on an involuntary basis in 2007.[4]
[4] Ibid at [6]-[7]
The mother commenced proceedings seeking urgent parenting orders on 19 February 2010.
On 22 March 2010 the Court made interim orders providing that the child would live with the mother and the father was to have no contact with the child.
The father filed a Response seeking orders that the child [X] should live with the mother and spend time with him, under supervision by his brother. He deposed that he had commenced living with his mother and brother.
Orders were made by consent on 17 June 2010 providing that the parties should attend the Sydney Children’s Contact Centre at Redfern and make arrangements for the father to see the child for a period of time each alternate week.
A Family Report under s.62G of the Family Law Act was prepared on 24 May 2011.
On 9 November 2011 the Court made Orders (inter alia):
a)ordering a further Family Report under s.62G of the Act;
b)ordering that the interests of the child [X] be independently represented by a lawyer under the provisions of s.68L of the Family Law Act;
c)requiring the father to file and serve all medical and psychiatric evidence relating to his mental and physical health; and
d)reserving the mother’s costs of the day.
The Application was listed for final hearing on 30 and 31 July 2012.
The Final Hearing
The Court was told that the parties had attended a Legal Aid mediation on a date prior to the first day of the hearing and had agreed on a number of orders to be made by consent. However, on the first day of the hearing it became clear that the mother was unwilling to agree to certain of the proposed Orders. She was also of the view that the parenting orders made should be final orders and not interim orders.
The father was of a different view, as was the Independent Children’s Lawyer.
Once it was clear that there was no consent to the detailed set of orders that had been prepared by the Independent Children’s Lawyer, the Court took submissions from the parties and the Independent Children’s Lawyer as to the nature of the Orders that should be made.
There was no issue as to the evidence before the Court.
Submissions
The mother submitted that the Orders should be made on a final basis. She did not agree that the proposed Orders relating to the arrangements for the father to see the child should be reviewed in twelve months’ time and suggested that they should not be reviewed until he had completed either Year Two or Year Three at school. As he is not due to start school until 2013, this would mean that the orders would not be reviewed until the end of 2015, at the earliest.
It had also been proposed that the mother should consult a clinical psychologist for the purpose of therapeutic counselling in relation to the father’s conduct towards her during his psychotic episodes as well as issue relating to the parenting of the child and facilitating his relationship with his father. The mother did not agree and submitted that it was not necessary.
The father is concerned that, as his mental health improves, he will wish to spend more time with his son. He already finds the short periods of time under supervision at a contact centre irksome, and he wishes to have those arrangements reconsidered and liberalised within the foreseeable future. He conceded that he was not in a position to have the child live with him on a permanent basis.
The Independent Children’s Lawyer submitted that there was a need for the parenting Orders relating to the father’s time with the child to be reviewed after twelve months and not a longer period for several reasons:
a)The father is still subject to a Community Treatment Order which is due to expire or perhaps be renewed in September;
b)There were no finalised arrangements in place for the proposed private supervision which was to be an alternative to supervision at the Contact Centre and would eventually replace that arrangement; and
c)The appointment of the Independent Children’s Lawyer would need to be finalised after twelve months, as it would be inappropriate for an Independent Children’s Lawyer to continue for another three years.
The Independent Children’s Lawyer conceded that, if the mother did not consent to the proposal that she consult a clinical psychologist, it would not be appropriate to make such an order as a condition of a parenting Order.
It was the view of the Independent Children’s Lawyer that it would be unrealistic at this stage for the child to spend overnight time with the father, let alone live with him on a permanent basis. There was also the question of parental responsibility to be considered, as the Independent Children’s Lawyer was of the view that the parties’ communication was poor to non-existent.
Against this, the father submitted that there was communication between the parents, but it was all by email.
Conclusions
Because there is no consent to a number of the proposed Orders, the Court will have to decide what Orders are to be made. It was explained to the parties that when a Court is considering making a particular parenting Order in relation to a child, it is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC of the Act.
When making a parenting order, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child (subsection 61DA(1)). However, this presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (see subsection 61DA (2)). Also, the presumption may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child (see subsection 61DA(4)).
Where a Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)).
If the Court does not make such an order, it is required by s.65DAA(2) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).
I have considered all of those matters.
The question of parental responsibility has largely been decided by the parties themselves. One area where the parties have already come to some agreement is the area of parental responsibility. They have agreed, whether on a final basis or an interim basis, for the mother to have sole parental responsibility for such matters as the child’s education and his health. The mother must notify the father about the school [X] is to attend next year and authorise the school to provide the father with school reports and other necessary documents. She must also notify him about health issues concerning the child. Otherwise, the parties have agreed to share parental responsibility in respect of other major long-term issues concerning the child.
In my view, there are several reasons why equal shared parental responsibility is problematic in this case. One reason is the history of violence arising from the father’s mental illness, which resulted in his hospitalisation as an involuntary patient on two occasions.
There is also no real communication between the parties at present. The father told the Court that they communicated by email, but that is hardly adequate to ground equal shared parental responsibility. It is appropriate that the mother should have sole parental responsibility for matters such as the child’s health and education, and if it were not for the mother’s agreement in respect of other issues it is likely that the Court would have made an order that sole parental responsibility should rest with the mother.
In the circumstances of this case, where the father is currently spending a limited amount of time with the child under supervision at a contact centre and where arrangements are being made for that time to be supplemented by privately-arranged supervision of time, it appears to me that it is neither in the child’s best interests nor reasonably practicable for the child to spend equal time with each parent. At this stage, with arrangements for the child to spend time with the father in the process of being increased whilst still supervised, substantial and significant time is also neither reasonably practicable nor in the child’s best interests.
The primary considerations for the Court under subsection 60CC(2) are set out in paragraphs (a) and (b):
(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.
The Court is now required by the recently-added paragraph (2A) to give greater weight to the consideration set out in paragraph (2)(b). In my view, the concerns about the father’s history of mental illness leading to violence would in any event have given the Court serious concern about the need to protect the child from the risk of harm. The mother was reported by the writer of the Family Reports, Mr L, as fearful that he may again attempt to strangle [X]:
It might be noted that when the separation occurred on 8/1/2010 police, and medical reports, indicted that Mr Camp was suffering from schizophrenia, needed to be subdued with capsicum spray.[5]
[5] Family Report 14.2.2012 page 4 paragraph [10]
The issues of family violence and family violence orders are additional considerations in paragraphs 60CC(3)(j) and (k). A final Apprehended Violence Order was made against the father at [omitted] Local Court on 13 May 2010 which was in force for two years. It has now expired and no evidence has been led to show that it has been extended.
It is the case that the father remains subject to a Community Treatment Order which involves his receiving medication by injection regularly. It is too early to tell whether the father’s mental health will improve further, but at this stage his time with the child will require supervision, with which the father now agrees.
That said, there is a benefit to the child in having a meaningful relationship with each of his parents. His mother is his primary caregiver. Whilst there are significant constraints on the father’s time with the child, the Family Consultant reported that:
…when focusing on the child, Mr Camp was attentive, gentle and affectionate.[6]
[6] Family Report 14.2.2012 page 8 [23]
I am satisfied that there is a benefit to the child in having a meaningful relationship with his father, but the avoidance of risk of harm to the child must take priority.
Turning to the other additional considerations in s.60CC(3), the child [X] is too young at four years of age for his views to be given any weight. The Family Consultant noted that at the observation session:
[X] was tentative about meeting his father and was subdued when they were together, a response which is probably related to the limited time the child has spent with his father.[7]
[7] Ibid at [25]
The child has a strong and positive relationship with his mother, who is his primary caregiver. His relationship with his father is necessarily limited, as he was only one and a half years old when his parents separated and has only seen his father for limited periods of time under supervision at a contact centre.
[X] has a relationship with his paternal grandmother, who “has emerged as a nurturing and appropriate supervisor”.[8] She was observed by the Family Consultant to interact with him in “an acceptable manner” and “[X] related to her positively”.[9]
[8] Ibid
[9] Ibid at [23]
The Family Consultant did not interview any other family members as they did not attend.
The mother has taken the opportunity to make long-term decisions about the child, such as enrolling him in school, and spends time with him and communicates with him. She is his primary caregiver.
The father has been unable to play a significant role in participating in making decisions about major long-term issues in relating to the child due to his mental illness and the lack of communication with the mother. Similarly, his communication and interaction with the child has been seriously limited because of the circumstances in which he spends time with the child.
The mother has apparently fulfilled her obligations in maintaining the child. There is no evidence about the father’s actions in this regard, but his capacity to do so has been severely limited by his illness over the past two or more years.
The likely effect of any change in the child’s circumstances is somewhat academic, as the parties have agreed that the father is not in a position in the foreseeable future to have the child spend time with him overnight, let alone spend in more lengthy time with him. They have agreed that the father’s time will continue to be supervised for the immediate future.
The practical difficulty of the child spending time with his father is caused by the need for his time with him to be supervised. The Sydney Children’s Contact Centre will not be able to continue to provide supervision indefinitely, and the parties have agreed to make inquiries about the provision of a private supervision service.
The capacity of the mother to provide for the child’s needs, including emotional and intellectual needs, is uncontested. The father’s capacity is hampered by his ongoing illness. He has been reported as lacking insight into the extent of his condition and he told the Court on the day of the hearing that he was quite well. However, he is still subject to a Community Treatment Order and there is no evidence at this stage as to how he will be able to function once this order comes to an end. The paternal grandmother is apparently a warm and nurturing grandparent.
This little boy was born [in] 2008. He is therefore four years and three months old. He was apparently born in Australia and his parents are of Chinese birth. [X] has lived in Australia for most if not all of his life.
The mother’s attitude to the child is that of a loving, nurturing parent who is concerned about avoiding the risk of harm to the child if the father’s mental illness were to relapse. The father wishes to see his son and spend more time with him. He is understandably frustrated at the restrictions imposed on his interaction with the child by the need for supervision, but has consented to a continuation of the supervision arrangements for the immediate future.
It is preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the child (paragraph 60CC(3)( l). It seems clear that there should be final orders providing that the child [X] should live with the mother. There should also be final orders providing that she should have sole parental responsibility for making decisions about major long-term issues of the child’s health and education. She is [X]’s primary caregiver and she is virtually a full-time single mother.
Unfortunately, the nature of the arrangements for the father to spend time with the child cannot be made as final orders at this time. The father’s time with the child is still subject to supervision, and it is too early to discontinue that arrangement. The parties have agreed to put in place arrangements for private supervision, but these have not been arranged yet.
The progress of the father’s mental health is another variable factor. He is still under a Community Treatment Order and there is no evidence at this stage as to whether that is to continue or not. It is a matter that needs to be reviewed in twelve months’ time. Thus, those orders will have to be made as orders until further order.
It is the view of the Independent Children’s Lawyer, and a view with which the parties agree, that the father’s time with [X] should be conditional upon his complying with all treatment prescribed for him by his psychiatrist. The Court has power to make parenting orders subject to such conditions (L v T[10]) and this is an appropriate case.
[10] (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699
I am not, however, persuaded that the mother should be required to attend upon a clinical psychologist for therapeutic counselling in relation to the father’s conduct towards her during his psychotic episodes or, for that matter, issues relating to parenting of [X], including facilitating his relationship with his father.
The mother does not wish to do so as she does not consider it necessary. I am inclined to agree. It would not be appropriate, as the Independent Children’s Lawyer conceded, to make is a condition of a parenting order.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 August 2012
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