Laursen & Orsini

[2021] FedCFamC2F 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Laursen & Orsini [2021] FedCFamC2F 367

File number(s):	PAC 2067 of 2017
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	12 November 2021
Catchwords:	FAMILY LAW – PARENTING – Undefended hearing – best interests of child – assessment of risk – father to have sole parental responsibility for the child – child to live with father – no orders for time with mother.
Division:	Division 2 Family Law
Number of paragraphs:	35
Date of hearing:	12 August 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Sproston
Solicitor for the Applicant:	Branston Neville
Appearing for the Respondent:	No appearance
Appearing for the Independent Children’s Lawyer:	Mr Walkden
Solicitor for the Independent Children’s Lawyer:	Walkden Law And Mediation

ORDERS

PAC 2067 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR LAURSEN Applicant
AND:	MS ORSINI Respondent
AND	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	12 NOVEMBER 2021

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The father, Mr Laursen, shall have sole parental responsibility for the children X born in 2015 and Y born in 2016.

3.The children shall live with the father.

4.X born in  2015 and Y born in 2016 are permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to X born in  2015 and Y born in 2016. The father shall be the only person with ‘parental responsibility’ of the children X born in 2015 and Y born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2015 and Y born in 2016.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

Introduction

1. These are reasons for judgement in respect of an undefended parenting application. The proceedings were commenced by the applicant father Mr Laursen on 2 May 2017. The respondent mother is Ms Orsini. The parties have two children together, X born in 2015 and Y born in 2016. The children are currently six and five years old, respectfully.

2. The father moves the Court for orders that he have sole parental responsibility for the children, that the children live with him, that there be no orders with respect to the children’s time or communication with the mother, that the father be permitted to apply to travel internationally with the children without the mother’s consent and that he be permitted to apply for and renew the children’s passports without the mother’s permission. The father’s application is supported by the Independent Children’s Lawyer (“ICL”).

3. Following the parties’ separation in March 2017, the children have lived with the father and the paternal grandparents. The father has been meeting all of the children’s needs and he has been their primary care giver since that time.

4. The last time the children were due to spend time with the mother was in September 2019, following when a contact centre, where the children were to be spend time with the mother, suspended the mother’s time. The mother has not made any contact with the father or the children since September 2019, save for one request, through her solicitors, for photographs of the children.

5. The mother has not engaged with these proceedings since 28 August 2020, when she last appeared before the Court at a directions hearing.

6. The mother failed to comply with Orders dated 28 August 2020, and failed to appear before the Court on 23 April 2021. Consequently, the matter was listed for final hearing on an undefended basis and was heard in that manner.

   Relevant Facts

7. The father was born in 1988. He is currently 33 years old. The mother was born in 1991. She is currently 30 years old.

8. The parties commenced their relationship in or around February 2013, and were married in 2014. They separated on 27 March 2017.

9. X was born in 2015.

10. Y was born in 2016. 

11. After the children were born, the father and the mother shared the parental responsibilities, although the mother stopped working in paid employment after the children were born and therefore as between the parents, had the bulk of the responsibility for the care of the children. The father was at all times self-employed with flexible working arrangements, and capacity to arrange his day so that he could provide care for the children as needed. The paternal grandparents would also assist with the care of the children on a regular basis.

12. It appears on the evidence that in early 2017, the mother started exhibiting concerning behaviours. On 6 January 2017, the mother collapsed and was unresponsive. She was taken to hospital in an ambulance where she was admitted and remained until 12 January 2017. During her admission, the mother was diagnosed with Autoimmune Encephalitis. During the mother’s admission, the father was told by the mother’s treating medical practitioner that:

    Ms Orsini was admitted in 2012 for severe psychotic illness believed to be autoimmune associated with encephalitis. Once she was discharged from … hospital, she never returned for follow up appointments.

13. Following the mother’s discharge from hospital, she was provided with a discharge plan and the father followed up by ensuring that the mother received her treatment on 16 January 2017. The mother continued to behave in a concerning manner, for example:

    (a)In late January 2017, the mother was observed standing outside her home with the younger child in her arms, looking confused about trying to find a remote control. When asked where the older child was, the mother said she did not know. The father arrived home shortly thereafter and observed the home to be “a mess” and the mother disorientated.

    (b)In February 2017, the mother complained to the father of “seeing things, seeing multiple visions and hearings things”; and

    (c)In March 2017, the mother said to the father that she “felt like jumping into the dam”, she asked the father to “give [her] matches so [she] can set [herself] alight”, and she said that she was “making a noose out of rope at home”.

14. Over a short period of time the mother’s health quickly deteriorated and she was admitted to hospital on a number of occasions:

    (a)Admitted to B Hospital on 1 March 2017 and discharged on 6 March 2017;

    (b)Admitted to B Hospital on 8 March 2017 and discharged on 15 March 2017

    (c)Admitted to B Hospital on 24 March 2017 and discharged that same day against health advice;

    (d)She was taken to C Hospital by ambulance on 27 March 2017, before being transferred to B Hospital and discharged on 24 April 2017.

    (e)Admitted to B Hospital on 15 August 2017 and discharged on 16 August 2017.

15. When the father was able to do so, he ensured that the mother was compliant with her medication. However, at other times the mother was not compliant with her medications and medical treatment. Her non-compliance with treatment was supported by the maternal grandmother.

16. The parties separated on a final basis in late March 2017 when the father left the former matrimonial home with the children. The father and the children then began living with the paternal grandparents. At the time of separation the children were aged 1 year and nine months, and 6 months.

17. From the date of separation until the father commenced proceedings in May 2017, the children did not spend time with the mother. Between May 2017 and August 2017, the father made numerous attempts to ensure the children spent time with the mother. On 30 August 2017, interim orders were made by consent for the father to have sole parental responsibility for the children and for the children to spend supervised time with the mother.

18. Further interim orders were made by consent on 19 December 2017 suspending the mother’s time with the children until 8 January 2018, and for a Single Expert’s Report to be prepared.

19. On 3 May 2018, orders were made by consent for the children to spend supervised time with the mother at D Contact Centre.

20. Dr E’s report was released in July 2018, making recommendations for supervised time as well as a need for the mother to engage with ongoing therapy. 

21. Further consent orders were made 23 August 2019 for supervised time between the mother and the children.

22. Since the commencement of proceedings, time between the children and the mother has occurred on the following occasions:

    (a)On 17 and 24 June 2017, the father says that he arranged for the children to spend time with the mother at the F Club in B supervised by his parents.

    (b)On 15 July 2017, the children spent time with the mother at the F Club supervised by his parents. On this occasion, the father says that he received a call from the paternal grandfather who said “Ms Orsini is trying to take the kids…come…”. The father says when he arrived at the F Club the mother had already returned the children to the paternal grandparents.

    (c)On 9 August 2017, the children spent time with the mother from 9am to 4pm supervised by G Families.

    (d)Following orders made by consent in August 2017 for the mother to spend time with the children supervised by the mother’s grandmother, the children spent time with the mother. However, time did not regularly occur after May 2018 following orders were made by consent for the mother to spend time with the children at D Contact Centre and K Families.

    (e)On 19 September 2018, the children spent time with the mother (and the maternal grandmother and great grandmother) at the F Club.

    (f)Following orders made on 23 August 2019, and between August 2019 and September 2019 the father attempted to take the children to the contact centre to see the mother. On 20 September 2019, the father took the children to see the mother at D Contact Centre, and upon arrival the staff advised the father that time could not occur. The father says that the children have not seen or spent time with the mother since this occurrence.

23. The father raises a number of significant concerns about the mother’s capacity to adequately care for the children as detailed in his Affidavit filed 22 April 2021.

24. Dr E’s report notes as follows:

    97. Supplied documentation, police records, and Ms Laursen's self-responses on psychological testing indicated that she has a longstanding history of mental health issues, inclusive of suicidal ideation and at least one concerted attempt and subsequent involuntary schedule to hospital. Ms Laursen also appeared to experience considerable difficulty articulating her mental health history, often confusing dates of hospital admissions, names of treating practitioners and doctors' appointments. Her confused account may also be suggestive of memory issues an if it persists, may warrant further attention by treating practitioners and an updated neuropsychological assessment by Dr H. The subpoenaed medical records indicate consistent observations by her treating health professionals that she exhibited insightlessness into her own condition resulting in the necessity of her being scheduled, defiance during her treatment and oppositional behaviours towards staff during hospital admissions, as well as ongoing erratic and impulsive behaviours requiring continued monitoring. Moreover, Ms Laursen appeared persistently evasive during discussions of her previous suicidal ideation, fearing any admission of a suicidal attempt will 'go against her'. She evidenced minimal understanding of the importance of her ability to reflect on her mental health as a means to better care for the children. Moreover, Ms Laursen sought to minimise the severity of her illness, referring to it on one occasion during interview as 'iust a bit of depression or stress', and the impact her illness may have on the children. Indeed, Ms Laursen communicated little insight into the treatment and support she requires to better address her mental health issues which is likely to impair her future capacity to provide adequate care to the children. The fact that she has, by her report only been off her medications for one month, and during the observations was noted to be quite erratic and emotionally labile suggests considerable caution is needed in the short term in terms of reducing Ms Laursen's supervision as further.

    98. Moreover, from the subpoenaed material provided, Ms Laursen was further assessed following her assessment with the clinician by Dr J. In his letter (dated 26 July 2018), providing his clinical opinion that Ms Laursen exhibited poor insight and adherence to treatment, and expressed concern that she had discontinued her treatments and that some of her symptoms that led to her hospitalisation are reappearing 'e.g., thought disorder, loud and pressured speech'. He also advised that Ms Laursen be placed back on psychotropics as 'the situation is likely to deteriorate '. He also noted that it was unclear how much of Ms Laursen's presenting concerns were related to her encephalitis, indicating that further information was required from B Hospital regarding the status of her treatment.

25. The father submits that due to the mother’s physical and mental health conditions, in conjunction with her refusal to seek professional medical help to deal with those health conditions, time between the children and the mother would not be in the children’s best interest. Furthermore, the father submits that the mother’s failure to deal with her mental health shows a lack of insight into the physical and emotional needs of the children. He says that he continues to hold deep concerns over the mother’s refusal to adequately seek professional medical help in regard to her mental health issues, as well as the mother’s failure to take her prescribed medications.

26. The father says that he has the capacity to meet all of the children’s needs including physical, emotional, psychological and financial needs.

27. The father also raises concerns over the maternal grandparents, including the fact that the maternal grandmother has repeatedly encouraged the mother to not take her prescribed medications or to seek professional help in dealing with her health conditions.

28. The ICL supports the father’s application.

    Determination and Conclusion

29. The presumption of equal shared parental responsibility has been rebutted on the evidence. The mother’s lack of engagement with the proceedings, the lack of evidence of her engagement with appropriate medical treatment and lack of evidence of capacity to meet the children’s needs are all contra-indicators of the mother’s capacity to make shared decisions in relation to major long term issues concerning the children. In all of the circumstances, it is appropriate and in the children’s best interest that there be an order for the father to have sole parental responsibility for the children.

30. The mother has had numerous hospital admissions since 2017 for mental health issues including psychosis, depression, behavioural disturbance, suicidal ideation and suicide attempts. Orders were made in May 2018 and again in August 2019 that the father or his solicitors be notified of any admissions by the mother for medical treatment, including the reason for the admission, treatment regime prescribed and the prognosis provided. The mother has not been forthcoming with such information and the Court can not be satisfied that she is receiving appropriate treatment or that she is compliant with her treatment.

31. The father has been an engaged and loving parent. With the assistance of his parents, the father has been meeting all of the children’s physical and emotional needs and he has been ensuring that they are growing up in a safe and loving environment. The children have strong and loving attachments to the father and to the paternal grandparents. The father’s proposal sees the children remaining with their primary care giver and provide stability and routine for them.

32. The mother has not spent any time with the children since at the latest 2019, which in these young children’s lives is a significant portion. The mother has not availed herself of the opportunities presented to her by the interim orders which had been made from time to time, not only in terms of spending time with the children such that she could demonstrate appropriate capacity to meet their needs, but also in terms of satisfying the Court that her illness is appropriately managed and that the symptoms of that illness (or illnesses) do not detrimentally impact and impair her parenting capacity.

33. The mother’s disengagement from proceedings, her lack of engagement with treatment and the lack of evidence of amelioration of risk has meant that the children have missed important opportunities of having a meaningful relationship with their mother. The risk to the children of spending unsupervised time with the mother has simply been too great and continues to be significant and unacceptable for reasons outlined earlier.

34. The mother’s unchecked behaviours pose a serious risk to the children who are young and vulnerable. Long term supervision, in all of the circumstances, is not a viable option as there is presently no evidence of a suitable supervisor or indeed of any willingness or capacity by the mother to engage with a supervision service.

35. For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:  

Dated:  12 November 2021