MABERRY & EDGAR
[2011] FMCAfam 357
•14 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MABERRY & EDGAR | [2011] FMCAfam 357 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – equal time – whether equal time with each parent in child’s best interests – substantial and significant time – whether in child’s best interests – whether reasonably practicable – mental health issues – independent psychiatric examination – relocation issue – family violence order. PRACTICE & PROCEDURE – Independent Children’s Lawyer – whether child’s interests should be independently represented by a lawyer. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA, 68L |
| Campbell & Spalding [1998] FamCA 66 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Henson & Edgar [2011] FMCAfam 347 Re K (1994) 17 Fam LR 537; FLC 92-461 L v T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 S & McL [2006] FMCAfam 686 |
| Applicant: | MR MABERRY |
| Respondent: | MS EDGAR |
| File Number: | BRC 7370 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 April 2011 |
| Date of Last Submission: | 14 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 14 April 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Vachon |
| Solicitors for the Applicant: | Christine Vachon Solicitor |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Walsh Halligan Douglas |
ORDERS UNTIL FURTHER ORDER
The Orders made by consent in this Court on 16 December 2009 are suspended.
The interests of the child [X] born [in] 2006 are to be independently represented by a lawyer and Legal Aid Queensland is requested to arrange such representation.
The parties are to forward to Legal Aid Queensland for the use of the Independent Children’s Lawyer when appointed copies of all applications, responses, affidavits and other relevant documents within seven (7) days.
The Registrar of this Court is to forward to Legal Aid Queensland a sealed copy of these Orders within seven (7) days.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child [X] born [in] 2006.
The Mother is to spend time with the child [X] as follows:
(a)From Thursday 21 April to Tuesday 26 April 2011;
(b)From Saturday 2 July to Sunday 10 July 2011;
(c)From Saturday 24 September to Sunday 2 October 2011;
(d)From Wednesday 21 December 2011 to Sunday 8 January 2012; and
(e)From 10:00am on Saturday 7 May to 4:00pm on Sunday 8 May being Mother’s Day.
The time spent by the Mother with the child [X] is conditional upon the following:
(a)The Mother must reside at the home of the maternal grandmother MS J at [omitted] in the State of Queensland;
(b)The Mother’s time with the child [X] must be in the presence of either the maternal grandmother or the Mother’s sister MS E;
(c)The Mother must continue to accept treatment from Dr W and comply with all requirements to take prescribed medication;
(d)The Mother must not administer to herself any illicit drug at any time; and
(e)The Mother must submit herself to a psychiatric examination by a psychiatrist nominated by the Independent Children’s Lawyer at such time and place as the Independent Children’s Lawyer shall advise.
The Father will spend time with the child [X] at all other times.
The Mother is to have telephone communication with the child [X] each Monday, Wednesday, Friday and Saturday with the Father to be responsible for calling the Mother’s mobile telephone between the hours of 4:00pm and 6:00pm on each occasion.
For the purpose of facilitating Order (6) above, the Father is to make all necessary arrangements for the child to travel to and from Brisbane at his expense including accompanying the child and deliver the child to and collect the child from the Mother at the domestic terminal at Brisbane Airport.
The Father is to give the mother three (3) days notice of the child’s flight number and flight time.
If the Mother is unable to attend at Brisbane Airport to collect or deliver the child in accordance with order (10) above then the child’s maternal grandmother MS J or the Mother’s sister MS E may attend instead of the Mother.
This proceeding is to be consolidated with the application to which the Mother is also the Respondent in file number BRC 1270 of 2011.
The application is adjourned to Monday 20 June 2011 for further mention before Federal Magistrate Slack at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Maberry & Edgar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7370 of 2008
| MR MABERRY |
Applicant
And
| MS EDGAR |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders by the Father of a little boy called [X], who is four years and ten months old. [X] is currently staying with his father in [T], New South Wales, and has done so since 17th February this year.
Orders Sought
The Father seeks orders both on a final and interim basis that:
a)The parenting orders made on 16 December 2009 be discharged;
b)He should have sole parental responsibility for the parties’ son [X] , who was born [in] 2006;
c)That the child [X] should live with him; and
d)The child should spend time with the Mother on a supervised basis as may be agreed.
The Mother seeks orders set out in her Response, which was filed on 12th April 2011. She seeks, on an interim basis, some 34 orders, which are essentially the same as the 34 final orders sought in the Response.
I have already commented on the undesirable practice of seeking final orders on an interim basis in another matter involving the same respondent (Henson & Edgar[1]).
[1] [2011] FMCAfam 347 at [5]
Curiously, the Mother seeks a fresh set of parenting orders, including that the child should live with her and that the parties should have equal shared parental responsibility, without mentioning the fact that there are already parenting orders in force which provide for virtually everything that the mother now seeks. What the Mother does not seek in her Response is a recovery order under the provisions of s.67Q of the Family Law Act 1975 to enforce the orders that have been in existence since 16th December 2009.
However, counsel for the Mother, Mr Alexander, has submitted that the Court should order that the child [X] be returned to the Mother’s care.
Areas of Agreement
There is virtually no agreement between the parties.
Background
The Father’s affidavit of 4th March 2011 sets out a chronology.
The parties commenced a relationship in May 2005 and separated in February 2008.
There is one child of the relationship, [X], who was born [in] 2006.
The Father was born [in] 1979. He is 31 years old.
The Mother was born [in] 1981. She is 30 years old.
There were proceedings between the parties which were finalised by consent Orders made in this Court on 16th December 2009. Those orders provided that:
a)The parties should have equal shared parental responsibility for the child;
b)The child would live with the Father:
i)from Wednesday afternoon until Sunday afternoon each alternate fortnight during the school term;
ii)half of the autumn, winter and spring school holidays; and
iii)on a week about basis during the summer school holidays.
c)He would live with the Mother for the rest of the time.
By then, the Mother had formed a new relationship with Mr Henson, the Father of her second child, [Y], who was born [in] 2009.
The Applicant Father in these proceedings moved to Sydney but continued to travel to Brisbane to spend time with [X]. Eventually, he came to an agreement with the Mother that he would spend time with the child for a week at a time.
The Father spent time with the child from 20th December 2010 until 11th January 2011.
The Mother has a history of mental illness and has spent several periods of time in the [N].
The child commenced school in Queensland on 24th January 2011. The Mother was an inpatient at [N] at that time. The Father spent time in Queensland when [X] commenced school and then returned to New South Wales.
The Mother was again admitted to the [N] and [in] 2011 Mr Henson telephoned the Father and asked him to take [X] into his care, as he had been looking after him since the Mother had gone back into [N] a few days earlier.
The Father took [X] back to New South Wales and enrolled him in [T] School, on the New South Wales Central Coast.
The Mother travelled to New South Wales on 17th March 2011. There was an incident the following day which led to the Mother being arrested by the Police. The Police applied for an Apprehended Domestic Violence Order against the Mother, which was returnable at the [omitted] Local Court on 29th March. The Mother was not able to attend as she was again an inpatient at the [N]. The matter was adjourned to a date in May.
The Mother was discharged from the [N] on Tuesday 12th April 2011. She filed a Response and affidavit in support that same day.
Submissions and Evidence
The parties were ordered to attend a Child Dispute conference with a Family Consultant, which took place on the morning of 14th April. The Family Consultant gave oral evidence later that morning. She said that the Father said that the child had settled at the [T] School and he had arranged for him to have some necessary dental work. He had concerns about the Mother’s capacity to look after the child and said the Mother had an ongoing problem with substance abuse.
The Family Consultant described the Mother as looking “tired and stressed”. She was accompanied by a man with whom she was having a relationship, a person whom she had met at the [N].
The Father relies on his affidavits of:
a)4th March 2011;
b)11th April 2011; and
c)13th April 2011.
He also relied on a brief affidavit by his solicitor of 8th April 2011, annexing copies of certain correspondence from Mr Henson’s solicitors.
The Father’s solicitor, Ms Vachon, tendered medical notes from the [P] Hospital and the [N].
She submitted that the Mother’s mental health was not sufficiently settled for the child to be returned to her care at this stage.
The Mother relied on her affidavit of 11th April 2011 and an affidavit by her mother, Ms J, affirmed 12th April 2011.
Mr Alexander of counsel, who appeared for the Mother, provided a written submission to the Court. He submitted that the Father had unilaterally removed [X] from the Mother’s care and she sought his immediate return. He referred to the fact that the Father had consented to the Orders of 16th December 2009, despite his “alleged historical concerns” about the Mother’s capacity.
Counsel for the Mother relied on the decision of the Full Court of the Family Court in Campbell & Spalding[2], where Warnick J referred with approval to a statement by the trial judge:
“But I believe the standard to be applied on an interim decision as even more stringent than on a final basis that where a relationship ends it is not for one party to re-locate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever”.[3]
[2] [1998] FamCA 66
[3] Per Warnick J, Ellis & Lindenmayer JJ agreeing
Mr Alexander also referred the Court to the decision of Brown FM in S & McL[4], where his Honour, following Campbell & Spalding, said:
…a parent cannot set up a change of circumstances, vis-à-vis the other parent, and then have the advantage of using that as the background against which the court, ultimately at a final hearing, will be evaluating the competing proposals of the parties as to how the interests of the child or children will be best served. Rather the parties’ proposals should be judged against the background of long standing arrangements for the care of the children. Otherwise, to use the jargon, that would not be a level playing field and may, in certain circumstances, pre-empt the need for a final hearing at all.[5]
[4] [2006] FMCAfam 686
[5] [2006] FMCAfam 686 at [77]
He also referred to the decision of Boland J in Morgan & Miles[6] at [88].
[6] [2007] FamCA 1230; (2007) FLC 93-343
Mr Alexander submitted that the Father was content for the Mother to have the predominant care of the child, despite previous allegations about such matters as drug abuse, and the only basis upon which he ought now credibly be able to disagree with the Mother’s continued care of the child is in respect of her mental health. On the evidence, he submitted, the Mother does not pose a risk to the child, as witness the report from the Mother’s treating psychiatrist, Dr W.
He quoted Dr W as saying in her report that the Mother is not currently taking anti-depressants and “is capable of being a primary care giver to her two children”.
Further, he submitted that Dr W had expressed the opinion that:
There is no risk of harm in her care. She is reporting minimal symptoms, is not depressed and is intending to live with mum on discharge from hospital.
The submission is that there is no evidence before the Court to indicate that the Mother is a danger to either of her children when they are in her care or control. The fact that she consulted a psychiatrist and spent some time in a hospital is not a basis to remove the children from the Mother’s care, order sole parental responsibility and split the two children from each other in the way proposed by the Father and
Mr Henson, in his application to the Court heard simultaneously with this matter.
The Relevant Law
In deciding whether to make a particular parenting order in relation to a child, section 60CA of the Family Law Act 1975 provides that the Court must regard the best interests of the child as the paramount consideration.
The Court determines what is in the child’s best interests by considering the matters set out in subsection 60CC(2) (the primary considerations) and subsection 60CC(3) (additional considerations). The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see subsection 60CC(4)) and, where the parents have separated, as they have in this case, any events that have happened or circumstances that have existed since the separation occurred (see s.60CC(4A)).
When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for his[7] parents to have equal shared parental responsibility for him. This presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:
a)abuse of the child; or
b)family violence.
[7] In this case
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 (see s.61DA(3)) (see also Goode & Goode[8]).
[8] [2006] FamCA 1346; (2006 36 Fam LR 422; FLC 93-286
In making a final parenting order, the Court must disregard the allocation of parental responsibility made in the interim orders (see section 61DB).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider:
a)Whether the child spending time with each of his parents would be in his best interests; and
b)Whether it would be reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for equal time with each parent, subsection 65DAA(2) provides that the Court must consider:
a)Whether spending substantial and significant time with each parent would be in the child’s best interests; and
b)Whether substantial and significant time with each parent would be reasonably practicable.
Substantial and significant time is defined by s.65DAA(3) to include not only days that fall on weekends and holidays but also days that do not fall on weekends and holidays. The time must also allow the parent to be involved in the child’s daily routine and be involved in occasions that are of particular significance to the child or of special significance to the parent.
Reasonable practicality is defined by s.65DAA(5). The Court must have regard to:
a)how far apart the parents live from each other;
b)the parents’ current and future capacity to implement an arrangement for the child to spend equal time or substantial and significant time with each of them;
c)their capacity to communicate with each other and resolve difficulties that might arise;
d)the impact of such an arrangement on the child; and
e)any other relevant matter.
I have considered all of those matters.
There is a submission, opposed by the Mother, that the child’s interests would be served by again appointing an Independent Children’s Lawyer, as was the case in the previous proceedings. Section 68L of the Act provides that, in dealing with a case where a child’s best interests or a child’s welfare are the paramount consideration or a relevant consideration, the Court may order that the child’s interests should be independently represented by a lawyer.
The decision of the Full Court of the Family Court in Re K[9] provides some useful guidelines to assist the Court in deciding whether an Independent Children’s lawyer should be appointed.
[9] (1994) 17 Fam LR 537; FLC 92-461
One relevant guideline is where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child. The Full Court described the need for appointment in such cases as “self evident”.[10]
[10] (1994) FLC 92-461 at 80,775
There is also before the Court an application that the mother undergo an independent psychiatric examination for the purposes of determining her mental health. The Court has no power to make such an order in isolation, but it has been held to have the power to make the order as a condition of a parenting order:
[51] Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or contact order, we have significant doubt as to whether such an order can be made as a self-standing order.[11]
[11] See L v T (1999) FLC 92-875 per Kay, Coleman & Brown JJ at [51], 86, 391
Conclusions
The orders to be made are essentially temporary orders, to cover the situation for this little boy until the matter can be considered in more depth. I have acceded to the submission that this matter is to be consolidated with the application by the Father of the mother’s younger child, [Y], so that the matters can proceed together. That application is to be adjourned to 20th June 2011 for further mention before Slack FM, and I propose to order that this matter be adjourned to that same date for further mention before his Honour. The applications will be consolidated.
There are some troubling aspects to this matter, and, as I stated in Henson & Edgar[12], the Court needs to weigh up conflicting considerations in order to arrive at a result that is in the best interests of this little boy. I should make it clear that, although there are certain common features between this case and that involving the mother’s other child, this matter has been decided on the evidence and submissions presented in this case.
[12] supra
This is a matter where the interests of the child [X] should be independently represented by a lawyer, and I propose to make such an order and request the assistance of Legal Aid Queensland to arrange this representation. I note that the child’s interests were previously represented by an Independent Children’s Lawyer from Legal Aid Queensland, and it may be that this same person will again be available. However, that is not a matter for this Court to decide.
The primary considerations for the Court in determining what is in the child’s best interests are both set out in s.60CC(2) of the Act.
First, the Court must consider the benefit to the child of having a meaningful relationship with both of his parents. He has been living with his mother until 14th February this year, when she was again admitted into the [N]. There is evidence that he has spent regular time with his father, both in Queensland and in New South Wales. If he does not return to his mother’s care on an interim basis, will he lose that meaningful relationship? I believe not, provided that there is continued telephone contact and he still sees his mother regularly.
The Court must also consider the need to protect [X] from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am satisfied that there is no evidence that the Mother would deliberately use violence on her child.
However, the Mother’s mental state has been volatile over the past year or more and there have been several admissions either to the [P] Hospital or the [N]. Some of the admissions to [N] have been voluntary, which is to the Mother’s credit, as she has had the insight into her symptoms to decide that she needed to obtain treatment. Some of her admissions have not been voluntary, and have been as a result of incidents where the police have been involved.
The circumstances in which the Mother came under notice in New South Wales in March of this year are a cause for concern and require further investigation.
There is a question about the Mother’s ability to cope with the care of this child, and his young brother [Y], at this stage, even with the assistance of her mother and her sister. The Mother was only discharged from the [N] on Tuesday 12th April after her latest admission.
There are some doubts about the Mother’s stability at this stage. I note that she appears to have formed a relationship with a man whom she met whilst an inpatient at the [N], and little is known about this man at this stage.
This is not a relocation case where the Father elected to move the child’s residence to New South Wales on a permanent basis. The evidence is that the Father took the child into his care when the Mother was unable to look after him because of her latest bout of mental illness, requiring her to be an inpatient at [N]. The child had just started school in Queensland when the Mother was admitted. As the child is said to have settled at school in [T], it would not be in his interests to move him back until the Mother appears to be in a more stable condition.
It is a consideration that [X] is to spend the immediate future in New South Wales whilst his younger brother [Y] will remain in Queensland. Clearly, they need to maintain contact, which is one reason why the child will have to spend time during the New South Wales school holidays with his mother, because I have made orders that [Y] will be spending time with his mother on a weekly basis, which will allow the children to be together when [X] is in Queensland.
The Mother will be living with her mother, which is agreed by all parties to be a positive step. The Mother will need to remain living with her mother for the time being, and when [X] comes up to Queensland for school holidays, including over Easter, he will be staying at the home of his maternal grandmother. The Court needs to have regard to the nature of the relationship of the child with his grandparents (see s.60CC(3)(b)(ii)).
The issue of family violence has been raised, and there is a provisional order in place as a result of the incident at [T] in March. The matter will be back before the Local Court of New South Wales in May.
It is for these reasons that I consider that the best interests of this child will best be served by his remaining in the care of his father at this stage whilst spending time with his mother during the school holidays. The appointment of an Independent Children’s Lawyer should assist the Court, especially in arranging for an independent psychiatric assessment of the Mother.
I have not varied the parental responsibility, so that the parents will retain equal shared parental responsibility during this interim period. However, equal time with each parent is neither practicable nor in the child’s best interests at this stage. Similarly, substantial and significant time would not appear to be practicable or in the child’s best interests.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 April 2011
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