Lisle and Lisle (No 2)

[2010] FamCA 854

FAMILY COURT OF AUSTRALIA

LISLE & LISLE (NO. 2) [2010] FamCA 854

FAMILY LAW – CHILDREN – urgent interim parenting proceedings – best interests of the child – consideration of a parenting order with terms and conditions
FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION  – relevant considerations

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286;
Director-General of the Department of Human Services and Tran & Anor (2010) FamCAFC 151

APPLICANT: Mr Lisle

RESPONDENT: Ms Lisle

INTERVENER: Director-General
NSW Department of Human Services (Community Services)

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 31 of 2008

DATE DELIVERED: 22 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Rose

HEARING DATES: 20 & 21 September 2010

REPRESENTATION

APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	I Ryan
SOLICITOR FOR THE RESPONDENT:	Catalyst Family Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	K Shea of Legal Aid NSW
COUNSEL FOR THE INTERVENOR:	E Lawson
SOLICITOR FOR THE INTERVENOR:	Crown Solicitor’s Office (NSW)

Orders

1. That the child of the father and mother Y born … December 2004 (“the child”) continue to live with the mother subject to the following conditions:

   (a)The mother is to ensure that the child continues to attend V Public School on each school day AND in the event that the child is unable to attend school due to illness then the mother is to obtain a medical certificate for each day that the child is unable to attend school and is to provide a copy of such certificate to the school principal within 24 hours of the missed school day.

   (b)On or before 5.00pm, 27 September 2010 the mother is to attend upon her general practitioner for the purposes of obtaining:

   (i)a referral to a psychologist at the READ Clinic;  and

   (ii)a mental health plan.

   (c)The mother is to make and attend the earliest available appointment with a psychologist at the READ Clinic for the purposes of confidential counseling subject to Order 1(f) herein.

   (d)The mother is to attend the initial appointment with the psychologist at the READ Clinic and all subsequent appointments as recommended by the psychologist.

   (e)The mother is to comply with the treatment recommendations made by the psychologist.

   (f)The mother is to provide a written irrevocable authority to the psychologist to immediately notify the independent children’s lawyer in the event that:

   (i)the mother fails to attend a scheduled appointment without reasonable excuse;

   (ii)the mother fails to comply with treatment recommendations;

   (iii)the mother’s mental or emotional state is such that she is not capable of caring for the child appropriately.

   (g)The mother is to do all acts and things reasonably necessary to facilitate home visits by the NSW Department of Human Services (“DHS”) on a weekly basis including facilitating meetings between the DHS and the child as requested.

2. That leave is granted to the independent children’s lawyer to provide the mother’s psychologist with:

   (a)A copy of the Orders made this day.

   (b)Copies of Dr M’s reports dated 26 June 2008, 14 May 2010 and 10 September 2010.

   (c)A copy of the Affidavit of Ms B sworn 30 August 2010.

3. That leave is granted to the independent children’s lawyer to provide a copy of the Orders made this day to Dr M.

4. That the mother attend upon Dr M for mental health assessment at the earliest date and time which he has available as notified to the mother’s solicitor by the independent children’s lawyer on or before 5.00pm, 23 September 2010.

5. That in relation to Order 4 herein the independent children’s lawyer make arrangements for Dr M to provide a report as soon as possible prior to 29 November 2010 in relation to:

   (a)the mental health assessment of the mother;  and

   (b)the impact of such assessment in relation to the mother’s capacity to provide primary or other care for the two children or either of them.

6. That the child spend time with the paternal grandparents at their home for a period of five (5) days four (4) nights during the first week of the September/October 2010 school holiday period with specific dates and times to be agreed between the mother and paternal grandparents.

7. That the mother and father be and are hereby restrained from using any form of physical discipline whatsoever on either of their two children.

8. That the mother and father ensure that the child continue to spend time with the father and that the eldest child X each alternate week for a period of two (2) hours supervised at the Children’s Contact Centre.

9. That pursuant to sections 62B and 65DA(2) 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 the parties to adjust to and comply with an Order are set out in the documents annexed to these Orders.

10. That leave is granted to the mother and father to file and serve the affidavits referred to in Orders made 15 June 2010 on or before 4.00pm 15 November 2010.

11. That the parties cause their respective case outline, chronology and list of authorities to be emailed to the Associate to the trial Judge on or before 5.00pm, 25 November 2010.

12. Liberty to apply is granted to the parties to vary Order 10 made this day upon seven (7) days written notice being given.

13. That the final hearing of the parenting proceedings is fixed for five (5) consecutive days commencing 10.00am on 29 November 2010.

NOTATIONS:

A.It is noted that the independent children’s lawyer will provide a copy of the Orders made this day to the child’s school principal and will request the school principal to arrange for the school counsellor to monitor the child’s emotional wellbeing and behaviour.

B.The parties, in particular the father and mother, were informed that the final hearing will proceed irrespective of a further failure by either of them to file and serve the affidavits upon which they rely unless otherwise ordered.

IT IS NOTED that publication of this judgment under the pseudonym Lisle & Lisle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC31 of 2008

MR LISLE

Applicant

And

MS LISLE

Respondent

And

DIRECTOR-GENERAL NSW DEPARTMENT OF HUMAN SERVICES (COMMUNITY SERVICES)

Intervener

REASONS FOR JUDGMENT

Introduction

1. In these proceedings I have delivered two ex tempore judgments.

2. The first on 13 September 2010 and the second on 21 September 2010.

3. In each of those judgments I gave a summary of the relevant background to these proceedings which do not require reiteration in this Judgment.

4. The application before me is the Application in a Case filed by the intervener on 30 August 2010.  In essence, the primary order sought in that application is that the care of the child be immediately removed from the mother to the care of the paternal grandparents or as otherwise directed by the intervener.

5. The application is opposed by the mother.

6. At the commencement of the proceedings the application was supported by the independent children’s lawyer.  However, following completion of the evidence and during the course of submissions, the independent children’s lawyer sought different orders, being Exhibit 10 in the proceedings.  Essentially, the orders sought by the independent children’s lawyer are that the child remain in the care of the mother, subject to a number of precise terms and conditions which taken together provide for ongoing support for the mother in her care of the child.

7. The father did not oppose the orders sought by the intervener.

8. As I have previously recorded, unfortunately neither the mother nor the father filed any affidavit material in relation to the hearing of the proceedings, notwithstanding having approximately three months to do so.

9. In the case of the father his reasons for his lack of action were due to difficulties he was experiencing in the last three weeks.  As to the balance of the three months nothing of substance was said.

10. So far as the mother is concerned, she has been unrepresented until recently.  Fortunately in many respects she received a grant of legal aid and has been represented by her current solicitors since early this month.  For reasons best known to them, not only was there an absence of any affidavit evidence on her behalf, but no application was made to me or any other judicial officer to extend the time for filing and service of affidavits.

11. Consequently, the matter proceeded before me on the affidavit evidence relied upon by the intervener and the expert evidence provided by the court-appointed expert Dr M, psychiatrist, as well as a proof of evidence and oral evidence given by the paternal grandmother.  There were other documents which were also tendered during the hearing.

12. The oral evidence that I received was that given by the paternal grandmother to which I have referred, the court‑appointed expert Dr M and Ms B, psychologist and child protection counsellor engaged with PANOC, being the entity concerned with the prevention of child abuse.

13. The evidence given by the experts was of much assistance to me and which outlined the complexities of the issues.

14. It must be emphasised that the application that I have been asked to determine is one seeking urgent interim orders.

15. The hearing which had been set down for this week was for a final hearing.  However, due to the absence of evidence by the father and mother, and the consequence of the ex parte orders made on 13 September 2010, the only practical approach that could be adopted for the purpose of the hearing this week, bearing in mind the urgent issues that were raised quite properly by the intervener, and the need on the other hand to provide procedural fairness to the father and mother, was for the proceedings to continue limited to consideration of urgent interim orders.

16. Given the unusual circumstances of the service upon the mother and father of the affidavits filed on behalf of the intervener and the supplementary report by Dr M dated 10 September 2010 being Exhibit 6, I permitted cross-examination of Dr M and such of the deponents relied upon by the intervener as may be sought to be called for that purpose.  Ultimately, counsel for the mother only sought to cross-examine Ms B.  The father, in effect, joined in the approach to the conduct of the proceedings that largely lay in the hands of counsel for the intervener, counsel for the mother and the independent children’s lawyer.

Issues and evidence

1. The expert evidence solely related to the issue of whether or not it is in the best interests of the youngest child of the father and mother, X, born in December 2005 (who I shall refer to as “the child”) who is five years of age to continue to be in the primary care of the mother on an interim basis having regard to her alleged lack of appropriate capacity to provide for the child’s physical and emotional needs.

2. In that regard the intervener contends that the mother is prone to physically and emotionally abusing the child.

3. So far as the relevant principles are concerned, they have been outlined in the helpful summary provided by counsel for the intervener in her case outline document, subject to one important exception which requires emphasis, namely that the objects and principles outlined in the Act are subject to the best interests of the child.  The Full Court has also held that regardless of whether proceedings for parenting orders are interim or final, the considerations in s 60CC of the Act still apply, subject to relevance so far as the enumerated additional considerations are concerned.[1]  Section 60CA of the Act provides that:

   “A parenting order may only be made if it is in the best interests of the child to do so and that is the paramount consideration.”

   [1] Goode and Goode (2006) FLC 93-286

4. That section obviously applies to these proceedings.

5. I will provide now a summary of the relevant evidence given by or on behalf of the intervener as well as Dr M in the context of the urgent parenting order that is sought by the intervener.

6. That expert evidence essentially falls into two categories so far as the witnesses are concerned.  The first is the evidence of Ms B, and secondly, the evidence of Dr M.

7. Ms B provided an assessment report in relation to the mother dated 11 August 2010 signed off by other members of PANOC which became Exhibit 8.

8. Amongst the alarming features referred to in Exhibit 8 included the following.  The shower incident with the eldest child, X which occurred approximately three years ago.  It is alleged that the circumstances of that incident were such that it demonstrated inappropriate discipline of the child by the mother and secondly, a lack of insight by the mother into her behaviour in terms of care and/or discipline of the two children.  Nextly, the mother’s journal entry, made five years ago in 2005, in which she provided an acknowledgment of her inappropriate emotional reaction to misbehaviour by the eldest child.  In addition, a lack of capacity to manage her emotional and physical responses to the youngest child’s projected future defiance and/or manifestation of independence.

9. The members of PANOC were also very concerned as to what they regarded as being frequent displays by the mother of anxiety and heightened emotions in responding to the assessment process.

10. During the course of her oral evidence, Ms B at various times referred to those matters and in addition emphasised that the mother was not open to counselling and support as recommended by PANOC and implicitly also the intervener.

11. Annexure D to the Affidavit of Ms B sworn 30 August 2010 is PANOC’s assessment report in relation to the father.  That report is dated 5 August 2010.  Serious matters were raised in that report in relation to the father’s parenting capacity.  They included, amongst other things, little insight into a variety of aspects of the care or potential care of both or either of the two children, abandoning his responsibility for guidance to the eldest child on important parenting matters, notwithstanding that the child is aged only 10 years, a number of other related matters, parental alienation of the eldest child against the mother, an allegation of sexual abuse by the father of the eldest child in the shower some years ago and a lack of capacity to manage “fragile and rivalrous sibling relationships”.

12. During the course of Ms B’s oral evidence, she pointed out that in contrast to the mother, the father was open to receive counselling and support.  Consequently, no urgent action was recommended in relation to the removal from his care of the eldest child. I found that there was a troubling recommendation that X may be placed in the long-term care of the father should he receive successful counselling when there may be substantial mental health issues that require more than counselling, but rather specialist treatment or therapy from a psychiatrist or a psychologist.  The report does not analyse those possibilities, nor make any mention of them.

13. In addition, the report does not appear to consider whether the father’s openness to receive counselling and/or support was a manipulative attitude to achieve a favourable assessment.  Consequently, what concerns me is that that report may have a certain naïve aspect to it so far as its omissions are concerned.  However, regardless of whether those shortcomings are indeed shortcomings at all, it does not detract from the serious issues raised in relation to the mother’s parenting capacity, rather it may be viewed as some reflection on whether or not PANOC was devoting its approach to the mother, without applying the same concentration on the issues that it quite properly highlighted so far as the father is concerned.

14. Dr M in his supplementary report dated 10 September 2010 being Exhibit 6 raised a number of alarming matters.  So far as the mother is concerned, he was of the view that upon the release of what is described as the PANOC report, being the assessment report which is exhibit 8, that it would be:

    “…extremely confronting to her emotionally and provides a direct threat to her primary parenting role of her youngest child, [X].  It is predictable that there will be an emotional decompensation in response.”

    In addition, he offered the opinion that so far as the mother is concerned:

    “It is difficult to predict as to whether there will be a behavioural outcome which will be a direct risk to [the child].”

15. Dr M proceeded to provide an explanation of that statement and expressed caution as to the question of the mother’s care of the child.  He also considered that so far as the detailed analysis by PANOC was concerned, and the mother’s current mental state as reflected in her interactions with the intervener:

    “It may be prudent to remove [the child] prior to the release of the report and the predicted further decompensation in the mother’s mental state.”

16. With regard to the members of PANOC, and in particular Ms B, being of the view that the mother showed signs of disassociation and implicitly was subject to the mental state of disassociation, Dr M expressed the following opinion:

    “I would agree that there is evidence that at times she becomes disassociated, lacking awareness of her own actions.  I did not, however, make a formal diagnosis of disassociation.”

17. The reports, to which reference has been made, were received on behalf of the mother by her legal representatives last Monday and implicitly were drawn to the attention of the mother.  However, there is no further evidence before me as to any decompensation, or any other aspect of behaviour which might be categorised as some defect in her capacity to care for the youngest child.

18. Dr M in his oral evidence disagreed with Exhibit 8 in that he stated that so far as he was concerned, he would not conclude that the child is in physical risk in care of the mother for the next several weeks.  Dr M emphasised that the foundation of his last report included an assessment of the mother, not by him but by members of PANOC, who included Ms B, a psychologist of undoubted experience but without any clinical experience so far as her curriculum vitae is concerned, and other members of PANOC qualified in different disciplines.  He stated that he had not had an opportunity to assess the mother’s current mental state, but was willing to do so on short notice and also to provide a further report if required, prior to a final hearing which was likely to be set down for a second time on 29 November 2010.

19. Dr M agreed with the proposition that so far as the mother’s manifestation of anxiety and high emotion in communication with PANOC and the intervener are concerned, in relation to the pending proceedings, that was understandable to some extent due to the background of conflict between the parents, the mother’s own history of anxiety, and the possible outcomes of the pending parenting litigation in this court.  He was of the view that it was important to maintain stability for the child in her current situation, including attending the same school, and to remain in the care of the mother, provided that she had suitable support from health professionals.  Caution was expressed in relation to a range of medication which she might otherwise be advised to take for the purpose of regulating her emotional state.  He said he was prepared to discuss that matter with the mother’s treating medical practitioner.

20. With regard to the child, Dr M also emphasised another risk, apart from the risk emphasised by the intervener.  The risk emphasised by the intervener was the mother’s assessed lack of capacity to provide for the physical and emotional needs of the child.  The additional risk was, according to Dr M, of similar importance, and that is the risk to the child of substantial trauma due to being removed from the care of the mother arising from current signs of separation anxiety.  Amongst the matters that Dr M took into account for that purpose were that the child is still of very young age, being five years, has already experienced the trauma of the chronically conflicted relationship between her parents, and other issues which have been documented in the evidence before me.

1. In addition, the child has been in the primary care of the mother all of her life, and she has her primary attachment to the mother, with whom she is closely aligned.

2. There was an incident drawn to Dr M’s attention as to whether the child was attempting to run away from after school care this week and showed signs of anxiety in relation to the mother in the proceedings.  Dr M was of the view that if that report was accurate, then it certainly showed signs of current separation anxiety for this young child.

3. The paternal grandmother gave evidence.  I was impressed by her as a truthful, sincere and warm personality who would have the best interests of the child foremost in her mind should she and her husband have the care of the child.  The paternal grandmother is known to the child.  However, for some time contact between them has been limited to telephone communication.

Conclusion

1. So far as my conclusion is concerned and prospective orders, it must be borne in mind, as I have already emphasised on a number of occasions, that I am determining the intervener’s application solely directed to urgent interim orders.  The most substantive of those orders so sought is an order that the child be immediately removed from the mother’s care and placed in the care of her paternal grandparents.

2. I have determined that the child will remain in the care of the mother, subject to most of the conditions as sought by the independent children’s lawyer.

3. My brief reasons for doing so are as follows.

4. In that regard, I also draw the parties’ attention to the fact that the nature of interim proceedings, even with limited cross-examination, are truncated and consequently these reasons for judgment will be similarly brief.

5. I have concluded that, due to the weight which I have given to Dr M’s evidence, it is not in the best interests of the child to be immediately removed from the mother’s care as sought by the intervener, or removed from her care and placed in the care of somebody else.

6. The child has experienced difficulties in her very young life.  The stable aspects of her life have revolved around the mother.  Whilst the mother has undoubted problems so far as regulating her responses to both her children, in particular the eldest child, the substantial matters relied upon by the intervener, in the main, occurred some years ago.  That does not mean that they are less serious, and no doubt will be explored further at a final hearing, unless these proceedings are compromised.

7. However, the question which arises is whether the weight that should be attached to those matters, which I should emphasise have not been tested, requires in the best interests of the child, that an urgent order be made.

8. I have accepted Dr M’s evidence in preference to that of Ms B wherever they conflict.

9. Dr M has qualifications as a child and family psychiatrist with substantial clinical experience and experience in general in dealing with child-related issues.  In saying so, I do not diminish the difficulties that Ms B has and her responsibilities in a challenging role with PANOC.

10. However, there is a long history of Dr M’s involvement as an expert, in which he has now produced three reports.  His considered views are based on his past assessments of the mother, informed to some extent by his own clinical experience.  Dr M, in his oral evidence which I have accepted, did not consider that the child was at risk in the forthcoming weeks, provided that the mother had necessary professional support.  These are matters upon which I have given ultimate weight.

11. In addition, I have taken into account the range of special terms and conditions sought by the independent children’s lawyer which I consider are in the best interests of the child.  The mother, through her counsel, has supported the application of the independent children’s lawyer for those orders to be made.

12. Before I announce those orders I should also express my appreciation for the manner in which the case has been conducted and, in particular, for the level of preparation and presentation of the intervener’s case by counsel, which I found to be of much assistance and eminently sensible.

Disqualification as the trial judge

1. A Judge should disqualify himself or herself either of his own motion, or on an application made by a party to the proceedings, if there is perceived to be a predetermination or a likely predetermination of an issue in a case.  There are other grounds for doing so as well which are not relevant to this case.

2. Any application that is made, which is rarely made because it is regarded as a very serious matter and responsible lawyers do not make this application unless they have got a real basis for doing so, is because there is an apprehension of bias or predetermination of an issue, even though there may not actually be such bias or predetermination.  So I raise this matter because of a perception that there was a predetermined view about a question of law in relation to how the Act should be applied where a party to proceedings, like the Director‑General of the Department in this case, may be asking that a parenting order be made for a child to be placed in the care of someone who cannot even be identified and, therefore, cannot be the subject of any findings as to their capacity to care for a child and other relevant matters.

3. They are all relevant because the Act says they must be considered, so the dilemma is to consider them in the vacuum of a person who might have the care of the child.  That was a matter which was recently before the Full Court.[2]  Judgment was given and on one view of it did not expressly deal with that particular issue.  Another view is that they did.  Consequently, it is an issue of interpretation.  The other is whether, because of possible criticisms of a witness who is likely to be a witness again in the final hearing, it was also preferable that I do not hear this case.

   [2] Director-General of the Department of Human Services and Tran & Anor (2010) FamCAFC 151

4. I have considered the matter overnight and I think that it is marginal as to whether I should disqualify myself or not.  However, given the sensitivity of the issues in this case, a possible view as to adverse conclusions being reached only on an interim basis so far as one of the principal witnesses for the intervenor is concerned, quite apart from the question of law of interpretation of the Act, I have decided that it is in the interests of justice that I do disqualify myself and that is what I will do.

5. I have also made inquiries and ascertained that another Judge is available to hear the case for the week commencing 29 November 2010.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 22 September 2010.

Associate: 

Date:  27 September 2010