Logan and Logan
[2011] FMCAfam 1057
•14 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LOGAN & LOGAN | [2011] FMCAfam 1057 |
| FAMILY LAW – Interim parenting – assessment of risk of mother’s mental health issues. |
| Family Law Act 1975, Part VII Federal Magistrates Court Regulations 2000 |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR LOGAN |
| Respondent: | MS LOGAN |
| File Number: | SYC 4536 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing date: | 8 September 2011 |
| Date of Last Submission: | 8 September 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 14 September 2011 |
REPRESENTATION
| Solicitors for the Applicant: | KP Lawyers & Barristers |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Sharah & Associates Solicitors and Conveyancers |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The child [X] born [in] 2005 live with the father.
The child spends time with the mother from after school on Friday to before school on Mondays, for 2 out of every 3 weekends commencing from the first weekend after making of these orders.
The child spends time with the mother during half of the school holidays as agreed between the parents, but failing agreement during the first half in odd numbered years and second half in even numbered years.
All contact time with the mother is to be in the presence of either of the maternal grandparents or other approved adults who all provide an undertaking in a form submitted by the Independent Children’s Lawyer.
The father to deliver and collect the child from outside of the former matrimonial home when change over is not at the child’s school.
The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.
THE COURT FURTHER ORDERS THAT:
Liberty be granted to file a Minute of Order in relation to the appointment of a Chapter 15 Expert.
The matter be adjourned to 6 December 2011 at 9.30am for mention if the Report is available and the parties must attend personally.
Liberty be granted to the parties to relist the matter on 7 days notice.
The matter be adjourned to 21 June 2012 at 10.00am for a two day final hearing.
The parties to file and serve all evidence not less than 21 days before the hearing date.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
The Court continues to note the mother’s without admissions undertaking not to enter the school grounds of the child’s school other than for the purpose of collecting [X] from and delivering him to the front gate of the school.
IT IS NOTED that publication of this judgment under the pseudonym Logan & Logan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
SYC 4536 of 2011
| MR LOGAN |
Applicant
And
| MS LOGAN |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Logan. [X] is six years old. His father is the applicant. The father lives in [Suburb A], is 48 years old and is an [occupation omitted]. The mother is the respondent. She lives in [Suburb B] and describes herself as [occupation omitted], and she is 47 years old.
This case is about whether [X] lives with his mother or father and consequential orders for spending time flowing from this issue. On 27 July 2011, I made a recovery order, the effect of which was that [X] was placed in his father’s care. On 3 August 2011, the parents entered into interim consent orders which left [X] in the father’s care, provided contact with the mother in the presence of her parents - that is, the maternal grandparents.
The interim hearing on 8 September was to deal with further interim orders pending two things. Firstly, an agreed Part 15 expert’s report and secondly, the final hearing. The father’s proposal at the interim hearing was that the orders made on 3 August 2011 are continued. The mother’s proposal was as per a minute of order provided by Mr Friedlander, her counsel, and this basically provided that [X] lives with his mother, that there be joint parental responsibility and contact with his father.
The evidence before me consisted of the material filed on behalf of the mother and the father, hence their respective affidavits. In addition, there was quite a significant volume of material produced on subpoena and tendered in evidence, including documents from [Suburb B] Public School – that is, [X]’s school – the New South Wales Police, [Suburb B] Medical Centre, the Department of Community Services, Dr S and a school counsellor at [Suburb B] Public School.
The applicable law in these cases is contained in Part VII of the Family Law Act, and the Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides a useful template for approaching these matters. The main issue in this case relates to the mother’s mental health. The father says that such are the concerns about the mother’s mental health that her time with [X] should be limited and [X]’s time should always be in the presence of someone. The mother says that there is no basis for any concern about her mental health and that the situation should be restored to the one that existed before separation in which she was responsible primarily for [X]’s care. That is to say, I should add, that it is not that there are no other issues, but those issues are subsidiary to determination of this one, so I propose to deal with it first.
A recovery order was made on the basis of the father’s evidence, which included a medical certificate provided to the father by the mother’s own doctor and which suggested the mother had psychiatric problems, including symptoms of psychosis and schizophrenia. The other supporting evidence includes material from [X]’s school which raised concerns about the mother’s behaviour. The mother, however, now provides a psychiatric report from her psychiatrist, Dr L. This presents a completely different picture and one suggesting that there are no mental health issues for the mother that would preclude her from having the care of [X].
The Court has to weigh competing evidence in the context of the serious concerns that have been raised about [X]’s welfare. The mother’s counsel says that there should be real concerns about the evidence used by the father to obtain the recovery order in that the contents of the medical report are inconsistent with the medical notes of the doctor and, in any event, look like it was based on a history given to the doctor by the father himself. The mother’s counsel submits that the other material relied on is ambiguous and not consistent with any risk of harm to [X].
This is, I should note, not a case about personality issues. It is about mental health issues, and the only evidence in this regard of a probative nature is Dr L’s report, which says that there are no mental health concerns. The father’s solicitor says, however, that there are real problems with the weight to be given to Dr L’s report, given that he has only seen the mother, not [X], not the father, and appears not to have regard to the documents produced on subpoena. Thus, the submission is, it is based on a skewed and incomplete history.
The father’s case is that in effect, the least risk is with [X] remaining with the father and having contact with the mother in the presence of the maternal grandparents. The independent children’s lawyer takes the same view. In fact, to be more precise, it is the father who adopts the independent children’s lawyer’s view. The independent children’s lawyer spoke with [X]’s principal, who reports of positive changes in [X]’s school involvement since coming into the father’s care.
Let me examine the evidence contained in the subpoenaed documents. The school counsellor’s notes are of little assistance. The mother’s GP, Dr S’s records contain references to the mother’s depression in December 2007 and then separation-related issues in November 2010. There are some references to paranoid thoughts. I must say, however, it is very hard to see how the mother’s general practitioner could possibly have provided the medical certificate that forms the basis of the father’s application, having regard to her own notes. Nonetheless, the impression formed from a reading of the doctor’s notes is that of a depressed mother. The Department of Human Services produces documents. Part of the problem with this material is that a reasonable inference is that many of the reports are made by the father, who is hardly an objective observer of these events. Also, many of the entries clearly snowball from Dr S’s medical certificate, despite its flimsy basis.
The father acknowledges in these notes that the mother has never hurt [X] in the past. The file contains notes of a police interview, for example, that there is an assertion by the mother’s brother and sister-in-law that the mother has mental health issues which are undiagnosed. I note that this is nothing more than a lay opinion. When the police called Dr S, there was no mention of anything resembling what is contained in her medical certificate.
When the police spoke to the motel staff where the mother and [X] had been staying in the immediate period after separation, the staff reported that the mother was behaving strangely. The school principal apparently made the same observation. Documents are produced by [Suburb B] Medical Centre. All these documents evidence is the doctor’s opinion that the mother consumed much of the doctor’s time needlessly, and they decided that they did not want to see her again. They refer to no relevant medical issues.
One does get the impression that the mother is a difficult person at times and is demanding of her advisers, but that is hardly necessarily indicative of mental health issues. Other documents produced by the New South Wales Police Service really add nothing. [Suburb B] Public School contains some very detailed notes of interactions between the mother and various schoolteachers. Again, these notes suggest that the mother was, at the very least, a very difficult person, but the notes also go further and suggest that at times, her thinking was disorganised and some paranoia was evident in her thinking, and there is some suggestion of aggression and anger management issues.
I turn now to discuss the relevant risk issues. The evidence in this case is unsatisfactory all-round. Even Dr L’s report leaves room for uncertainty and doubt. I am not satisfied that Dr L either referred to or gave satisfactory weight to the documents produced on subpoena by [X]’s school. The section in his report entitled Review of Documentation at page 4 does not satisfy me in this regard.
There are aspects of the mother’s behaviour referred to in the school notes that create an impression of more than just difficult personality but perhaps, indeed, something more. In these circumstances, the Court is reluctant to take chances with [X]’s welfare in circumstances where a Part 15 expert’s report might be available within three or four months. The risk considerations favour, albeit only slightly, retaining [X] in the father’s care.
The general consensus of the father and the independent children’s lawyer is that an order that provides for the mother to spend time with [X] in the presence of the maternal grandparents will be sufficient protection for [X]. In these circumstances, and also where the mother is in occupation of the former matrimonial home, it does seem that there is no reason not to increase the mother’s time with [X] within the confines of a requirement that her parents be present.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 10 October 2011
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