Lilley and Jasper

[2019] FamCA 170

FAMILY COURT OF AUSTRALIA

LILLEY & JASPER [2019] FamCA 170

FAMILY LAW – CHILDREN – Parenting – Where the mother sought an adjournment of the final hearing – Where the mother cited reasons for application as lack of legal representation and dissatisfaction with the father’s decisions regarding the child’s health – Where the application for adjournment was dismissed – Where the mother was adequately prepared for trial and her concerns with the father’s parenting were issues to be adjudicated – Where the mother has suffered from significant mental illness – Where the parents have reached broad agreement about where the child would live – Orders for equal shared parental responsibility and the child to live with the father and spend time with the mother – Where time with the mother is to be supervised by the maternal grandparents until 2020 – Where the time with the mother, and her parental responsibility is suspended if she suffers a mental health relapse, to recommence on the advice of her treating professionals.

Family Law Act 1975 (Cth) s 61DA

APPLICANT: Mr Lilley

RESPONDENT: Ms Jasper

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 6826 of 2013

DATE DELIVERED: 21 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14, 15 and 18 March 2019

REPRESENTATION

THE APPLICANT: In Person

THE REPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

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

Orders

IT IS ORDERED

1. That the child B born in 2011 (“the child”) live with the father.

2. That the mother and father have equal shared parental responsibility for the child.

3. That for the purpose of changeover for any period of contact, unless otherwise agreed, the mother shall collect the child from school, or the father’s residence during a holiday period, and return the child to the father’s residence.

4. That the child spend time with the mother during school terms, and continuing during the school holidays in April, July and October 2019, each alternate weekend from after school Friday until Sunday at 5 pm, such time to be extended to 8 pm when the child is 12 years old.

5. That the child spend time with the mother during school holidays as follows:

   (a)In April 2019 during the NSW gazetted school holidays, for 3 consecutive nights, including the weekend time pursuant to Order 3.

   (b)In the July 2019 NSW gazetted school holiday period, for 4 consecutive nights, including the weekend pursuant to Order 3.

   (c)In the October 2019 NSW gazetted school holidays, for 5 consecutive nights, including the weekend time pursuant to Order 3.

   (d)In the December 2019 school holidays, for 7 nights from 5 pm on 26 December 2019 to 5 pm on 1 January 2020 and another 7 night period in the last week of the holiday period, commencing at 5 pm and  concluding at 5pm on the last Saturday of the school holiday period.

   (e)   Thereafter the child will spend half of all school holidays with each parent with the mother to have the first half in even numbered years and the second half in odd numbered years.

   (f)    At other times as agreed between the parties in writing.

6. That for the purposes of calculating the child’s school holiday time commencing in the 2020 school year, the first half of the holiday period commences at 5 pm on the day immediately following the last day of the gazetted school term and concludes at 5 pm on the day which is the midpoint of the holiday period and the second half of the holiday period commences at 5 pm. on the day which is the midpoint of the school holiday period and concludes on the last Saturday of the holiday period at 5 pm.

7. That for the purpose of calculation of the day which is the midpoint of the holiday, the holiday commences on the day after the last day of the gazetted school term and ends at 5 pm on the last Saturday before the day gazetted for the commencement of the next school term.

8. That from 2020, when the child has spent the first half of a school holiday period with the mother, weekend contact will restart on the first weekend of the school term. When the child has spent the second half of the school holiday period with the mother, weekend contact will restart on the second weekend of the school term.

9. That in the event the child’s weekend time with the mother is cancelled for reasons associated with the child’s health, then the time missed will be made up on the following weekend.

10. That in the event that holiday time with the mother is cancelled for reasons associated with the child’s health, then the time missed will be made up as agreed.

11. That in the event the child is not spending the Mother’s Day weekend with the mother pursuant to these orders then the child will spend from 5pm on the Saturday before Mother’s Day until 5pm on Mother’s Day with the mother.

12. That in the event the child is spending time with the mother on the Father’s Day weekend then that time will conclude at 5pm on the Saturday before Father’s Day. 

13. That the child have telephone or Skype contact with the mother on Tuesdays and Thursdays, and on her birthday, when she is not in the mother’s care, between 6.30pm and 7pm.

14. That the child have telephone or Skype contact with the father on Tuesdays and Thursdays, and on her birthday, when she is not in the father’s care, between 6.30pm and 7pm.

15. That until the commencement of the Christmas 2019 school holidays the mother's time with the child will be supervised by either one or both maternal Grandparents Ms N and Mr O Jones or in the event they are not available to supervise the child's time with the mother then by another member of the mother's family, as may be agreed between the parties in writing.

16. That from the commencement of the Christmas 2019 school holidays to the commencement of the Christmas holidays in 2020, the supervisors be substantially present when the child is spending time with her mother.

17. That the Undertakings provided to the Court by Ms N and Mr O Jones on 22 July 2016 continue in force for the duration of Orders 15 and 16.

18. That in the event that the mother suffers a relapse of her mental health condition and/or is admitted to a mental health facility she shall advise the father forthwith and during that period the child will return to the care of the father and time for the child with the mother is suspended.

19. That the mother authorise and direct the maternal grandparents to advise the father should the mother suffer a relapse of her mental health condition and/or is admitted to a mental health or other health facility and during that period the child will return to the care of the father forthwith and time for the child with the mother is suspended.

20. That in the event that the mother is admitted to hospital or another health facility the father will liaise with the maternal grandparents and/or the mother’s treating professionals to facilitating some time and/or communication for the child with the mother during the mother’s treatment.

21. That during any period the child’s time with the mother is suspended pursuant to Orders 18 and 19, the father shall have sole parental responsibility for the child and shall provide the mother with as much information as is available and relevant to any long-term decision to be made in respect of the child or to any accident or emergency medical matter relating to the child by email or writing during that period.

22. That during any period the child’s time with the mother is suspended pursuant to Orders 18 and 19 the mother and the child shall be permitted to write to each other.

23. That the mother will recommence equal shared parental responsibility and time with the child when her treating doctors and psychiatrists have provided advice in writing to the father that the mother is well enough to do so and the mother’s time with the child pursuant to Order 3 will recommence on the following Friday.

24. That each parent will inform the other, in writing, of any change to his or her residential address not less than 45 days prior to such change occurring and of any change to his or her contact telephone number within 24 hours of such change occurring.

25. That each parent is permitted to attend any school function and extra-curricular activities or school events that allow for parental attendance in which the child participates and these orders are authority for the mother to obtain all notices and correspondence relating to the child’s education from the child’s school.

26. That each parent will advise the other as soon as practicable of any serious accident or emergency involving the child which requires medical treatment or hospitalisation whilst the child is in his or her care.

27. That the father is to ensure that any medical, health, developmental, dental, behavioural and counselling professionals involved with the child are directed and authorised by the father to communicate with and provide information and copies of documents and reports to the mother at her request and cost and the father will provide notice to the mother of the child’s appointments in a timely fashion and the mother is at liberty to attend those appointments.

28. That the mother is to ensure that any medical, health, and counselling professionals involved in the mother’s treatment are directed and authorised by the mother to communicate with and provide information and copies of documents and reports to the father at his request and cost.

29. That the mother and the father by the end of July 2019 attend the “Keeping in Contact” program if geographically available.  If not, then a similar program such as “Keeping Children in Mind” or “Tuning in to Kids”.

30. That in the event the parents are unable to agree on matters relating to their equal shared parental responsibility they agree to attend Mediation at S Group to attempt to resolve the issue/s.

31. That the father be at liberty to apply for an Australian Passport for the child and the mother will execute the passport application when requested to do so in writing by the father and on receipt of the passport the father will provide a copy to the mother and will provide the passport to the mother on written request.

32. That the parents are restrained from taking the child outside the Commonwealth of Australia without the written permission of the other parent whose permission will not be unreasonably withheld and the travelling parent will provide the other parent with copies of the child’s return ticket and a full itinerary and contact details.

33. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6826 of 2013

Mr Lilley

Applicant

And

Ms Jasper

Respondent

REASONS FOR JUDGMENT

1. Mr Lilley (“the father”) and Ms Jasper (“the mother”) are the parents of B (“the child”) born in 2011, now aged eight years.

2. They separated on 13 April 2013. After separation they were able to agree on a shared parenting arrangement. In April 2014, the mother was admitted to a mental health facility and from May 2014, the child has lived with the father.

3. The father has remarried and he and his present wife have two small children, P aged almost four years and Q aged 15 months. They are B’s half siblings.

4. The proceedings in relation to B, which commenced in 2013, were listed for hearing for three days commencing on 14 March 2019.

5. In the proceedings an Independent Children’s Lawyer (“ICL”) has been appointed for B and a Family Report was prepared by a Family Consultant to assist the parties and the Court. The report was dated 13 September 2018 and thus was current at the time the hearing was to commence.  A previous report had been prepared by Dr D, a child and family psychiatrist. That report was dated 14 April 2015.

6. At the commencement of the hearing the mother applied to adjourn the proceedings for up to a year. She relied upon an affidavit sworn by her on 6 May 2019 and the fact that, about one month ago, she had ceased to instruct her former lawyers. After hearing submissions from both parents and the ICL, I declined to adjourn the proceedings and indicated that I would give reasons in the substantive judgment.

7. The reasons follow:

APPLICATION FOR ADJOURNMENT

1. These proceedings commenced in 2013 and have been finally listed for hearing in 2019. B was two when the proceedings commenced and is now eight.

2. It is clearly in B’s interest for the proceedings to be concluded and for there to be certainty and stability in her life.

3. The most cogent matter raised by the mother in her submissions is the fact that she has dispensed with her legal representatives. However, she did so in the knowledge that this matter had been listed for hearing and after her trial affidavit had been filed.

4. The mother, acting for herself, filed a comprehensive Case Outline Document which included an extensive chronology and summary of argument together with an explanation of the orders she sought. In submissions, the mother said that she had prepared cross-examination. She did not suggest that she was unable to conduct the proceedings herself.

5. The father, who also represented himself, was anxious for the matter to be finalised. The ICL stressed the importance, for B, of the matter being finalised.

6. The mother’s affidavit in support of her application for adjournment dealt with matters relating to her dissatisfaction with the father’s management of B’s health and what she perceived as his lack of consultation in relation to those issues.

7. A number of subpoenas have been issued by the ICL at the request of the mother, dealing with those issues and the relevant material is available so that the issue can be dealt with in the course of the hearing.

8. A subsidiary, but nevertheless important matter is that three days of hearing time have been allocated to this matter and there is not sufficient time to bring on another matter for hearing to avoid those days being wasted. Thus the interests of the administration of justice are served by the matter proceeding.

BACKGROUND

1. B was born in 2011. Shortly after the birth the mother consulted a psychiatrist and was prescribed medication.

2. In April 2011, the mother was admitted to hospital for four weeks diagnosed with a postpartum psychiatric illness.

3. In August 2011, B had surgery to resolve a medical issue.

4. In June 2012, the mother was again admitted to hospital and diagnosed with a mood disorder. She remained in hospital until August 2012.

5. The parents finally separated in April 2013 when B was two years old. After separation the parents agreed on a shared arrangement for B.

6. In September 2013, B was diagnosed with a medical condition.

7. The father commenced proceedings in November 2013 in the Federal Circuit Court of Australia.

8. In April 2014 until June 2014, the mother was again admitted to a mental health facility and from May 2014, B has lived with the father.

9. It is not necessary to detail the history of the arrangements for contact between B and her mother. That contact was, after a time, supervised at a contact centre and at a later time by the maternal grandmother.

10. In August 2015 the mother was admitted to a mental health facility for over three weeks.

11. From October to November 2016 the mother was admitted to a mental health facility.

12. She was again admitted between mid-August 2017 and mid-September 2017.

13. From 26 February 2018, the mother’s time with B was supervised by the maternal grandmother or grandfather on alternate Saturdays and after six weeks, extended to alternate weekends.

14. When the parents were interviewed by the Family Consultant in July 2018, they had reached agreement that B would live with the father and spend alternate weekends from Friday after school until Sunday evening with the mother.

THE TRIAL

1. The father relied upon an affidavit sworn by him and an affidavit by his present wife.

2. The mother was permitted to rely on an affidavit by her and an affidavit by her mother who had previously had a role in supervising contact.

3. With the assistance of the ICL, the parents were able to reach broad agreement on the first day of the hearing that B would continue to live with the father and that she would spend alternate weekends from Friday after school until Sunday evening with the mother. Significantly, they also agreed in relation to phasing out of strict supervision by the maternal grandparents.

4. The matter continued on the second day of the hearing. Both parents were cross examined.

5. On the third day, the ICL tendered a minute of the orders he proposed and a minute of orders relating to the matters then still in issue.

6. The parents were asked to address the ICL’s minute and indicate what they agreed upon and what they disagreed upon. It emerged that the father had reconsidered his position in relation to equal shared parental responsibility and now sought that he have sole parental responsibility in relation to matters of medical treatment.

7. Other than that issue, the matters raised by the mother in relation to the ICL’s minute were mainly matters of drafting and not matters of substance and I do not propose to give reasons for the minor drafting amendments that will be made.

8. The matters of substance which remain to be determined are:

   ·    Parental responsibility.

   ·    Whether weekend time should be extended to 8 pm when B is 12 years old.

   ·    Whether Sunday afternoon changeover should take place at a half way point or at the father’s home.

   ·    Overseas and interstate travel.

9. I propose to consider them in that order.

Parental responsibility.

1. Section 61DA of the Family Law Act 1975 (Cth) states, in relation to parental responsibility:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)  family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Issues of parental responsibility relate to those matters which are defined as “major long term issues” relevantly:

   (a)  the child’s education (both current and future); and

   (b)  the child’s religious and cultural upbringing; and

   (c)  the child’s health; and

   (d)  the child’s name; and

   (e)  changes to the child’s living arrangements that make it significantly more

   difficult for the child to spend time with a parent.

3. The only area where the father seeks to have parental authority is in relation to medical treatment. The father’s position was supported by the ICL.

1. Throughout the proceedings, both parties were in agreement that they should have equal shared parental responsibility until the last morning of the hearing and the commencement of submissions when the father told the Court that, based on the mother’s cross-examination of him in relation to medical issues for B, he had changed his position.

2. B has a number of medical practitioners involved in her care. She attends Medical Centre to see her general practitioner and Dr R is her paediatrician. She has been referred to a psychologist for counselling under a mental health plan. Concerns have been raised that she may have Attention Deficit Hyperactivity Disorder (“ADHD”) and/or a low level Autism Spectrum Disorder. As an infant she suffered a Kidney Disorder.

3. The mother, in the affidavit in support of her application for adjournment stated:

   The Birth Mother, therefore seeks ‘Special Permission’ and Consent from the Father... to consider the psychological and physical welfare and development of the Child

4. She referred to her wish “…to coordinate a comprehensive status of the Childs [sic] physical, emotional and mental wellbeing currently”.

5. The mother’s cross-examination of the father related, in part, to her wish to have second opinions from specialists in relation to B’s diagnoses and treatment.

6. The parents, with the assistance of the ICL, had agreed on a position whereby they would each be entitled to attend any specialists appointments arranged for B, to receive copies of reports and to discuss B’s health with those specialists. The father agreed in cross-examination that he would provide the mother with copies of any medical reports in his possession.

7. Dr D recommended that the father have responsibility for management of B’s health although he stated that this would not be necessary unless there was conflict between the parents about how such issues were to be managed.

8. The Family Consultant recommended that the parents have equal shared parental responsibility.

9. Both of these parents have B’s welfare at heart. The mother’s anxiety that she has been excluded from information and decisions relating to B’s health should be ameliorated by her attending the appointments with specialists and receiving copies of all of the specialists’ reports.

10. The orders upon which the parents have agreed provide that, if the parents are unable to agree on any major long term issue, they must firstly attempt to resolve the issue in mediation with S Group. 

11. It is to be hoped that the measures that will be put in place will provide a framework for the parents to consult and agree on matters of B’s health. If that does not eventuate, and the parties are unable to agree, with the result that B’s treatment is compromised, then the issue can be revisited. In that event, it is likely that the parent with whom B lives will have responsibility for medical treatment.

Whether weekend time should be extended to 8 pm when B is 12 years old.

1. The mother proposed that the time for B to be returned to her father’s care on Sundays should be extended when she is 12 years old to 8 pm instead of 5 pm. That would allow the mother to have the evening meal with B on Sundays which is not possible when she has to be at the father’s home at 5 pm.

2. The father opposed that position and sought to retain the 5 pm return.

3. B is now eight and the father’s evidence is that she goes to bed at 7 pm. However, by the time she is 12, her bedtime will no doubt be later.

4. The father submitted that B needs time to calmly prepare herself for school on the next day. However, given that the orders require the mother to return B to her father’s home and that B will have had dinner, I do not consider that a return at 8 pm is too late and I will make orders as sought by the mother.

Whether Sunday afternoon and holiday changeover should take place at a half way point or at the father’s home.

1. The travel time between the parents’ homes is one hour and 15 minutes.

2. The mother proposes that changeover should take place at McDonalds at Suburb K which is agreed to be half way between the two homes.

3. The father opposed that proposal. He works rotating shifts and cannot be available every Sunday to be at Suburb K by 5 pm. Neither can he guarantee to be available for changeovers in school holidays.

4. He was willing to provide the mother with a copy of his roster which sets his work commitments for the next two weeks and to collect B if he wasn’t rostered on. However, the mother said that, in the past, when they attempted changeovers in accordance with the father’s roster this had created problems.

5. Unfortunately, there seems to be no alternative but that the mother should return B to the father’s home.

Overseas and interstate travel.

1. This involves two separate issues. Firstly, the mother seeks to restrain the father from travelling overseas with B until she is 10 years old. Secondly, she asks that, in the event that the father travels within Australia, during his holiday or weekend time with B, he should provide to her an itinerary and contact details in the same manner as the parents have agreed would be appropriate during overseas travel.

2. The father’s position is that he should not be restrained from travelling overseas as the mother suggests and that, in the event of travel within Australia, it is sufficient that he tell the mother where they propose to go.

3. In relation to the issue of restriction on overseas travel until B is 10 years old, the mother submitted that B needs a period of time to “settle” with the revised parenting arrangements before she travels overseas. In that regard I note that the weekend arrangements have been in place since May 2018 and the significant change in the holiday arrangements is that holidays will be shared and not spent only with the father.

4. There are no plans for extensive overseas travel. The father told the Court that he would like to take his family overseas for a holiday.

5. The mother was unable to explain why she would raise no objection to the father travelling with B to Perth or Broome for a holiday but she would object to his travelling with her to New Zealand.

6. The mother’s objection to overseas travel has no basis in logic and no order will be made restraining the child from travelling with the father during any period she is in his care.

7. In relation to the provision of detailed information about travel within Australia, the mother submitted that she would feel reassured if she were to be provided with copies of return tickets and a detailed itinerary.   She submitted that the husband, who originally comes from Queensland, might travel with B to Queensland and not return.

8. Again there is no basis in logic to the mother’s position. There is no evidence that the father intends or plans any significant change of address. He has settled employment. He is aware of the consequence of the orders relating to parental responsibility and that he is not entitled to move B’s place of residence if the consequence of such a move is to affect B’s contact with her mother pursuant to orders.

9. In the event that the father determined to move interstate without first seeking the mother’s consent, it is unlikely that an order that he provide a copy of B’s airplane ticket would deter him.

10. There will be no requirement that either parent provide the other with details of proposed travel within Australia.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 March 2019.

Associate:

Date: 21 March 2019