MACGOWN & KOOPMAN
[2019] FCCA 3387
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACGOWN & KOOPMAN | [2019] FCCA 3387 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of child – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR MACGOWAN |
| Respondent: | MS KOOPMAN |
| File Number: | PAC 2494 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 1 November 2019 |
| Date of Last Submission: | 1 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms El-Ayoubi |
| Solicitors for the Independent Children's Lawyer: | Ms Rutkowska |
ORDERS PENDING FURTHER ORDER
That the mother and father forthwith contact Town A Children’s Contact Service (Relationship’s Australia) to arrange initial intake assessments for Group Supervised Contact (ph: …)
That the child, [X] born on … 2015, spend time with the father under the supervision of Town A Children’s Contact Service (Relationship’s Australia) as part of their Group Supervised Contact service at times as nominated by Town A Children’s Contact Service.
That for the purposes of order 2 herein:
(a)The mother and father shall comply with any appointments made by the service for supervised time;
(b)The father is responsible for payment of fees for supervised time as assessed by Town A Children’s Contact Service (and it is noted that the fees are assessed according to a sliding scale) and the mother shall contribute up to $10 per visit;
(c)The mother and father follow all reasonable requests and directions of Town A Children’s Contact Service.
That until such time as a placement for Group Supervised Contact becomes available at Town A Children’s Contact Service, that the child [X] shall continue to spend supervised time with the father at Area B Contact Service in accordance with order 2 of consent orders made on 6 December 2018 and in accordance with the current arrangements and schedule.
That the father forthwith attend upon his G.P. to obtain a Mental Health Assessment Care Plan, and if a Care Plan is made, then the father shall consult a psychologist as recommended by his G.P. for treatment regarding his mental health.
That the father attend upon his psychiatrist Dr C, as required and at such frequency as recommended by Dr C, and continue to attend upon Dr C (or such other mental health practitioner for a period as deemed necessary by them.
That the father comply with all reasonable directions and recommendations of Dr C and any psychologist upon whom he attends about his mental health treatment, and such treatment may involve therapeutic intervention counselling, courses and prescribed medication.
Direct the ICL to take all reasonable steps to have Dr D expedite the preparation of her expert report.
IT IS NOTED that publication of this judgment under the pseudonym MacGowan & Koopman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2494 of 2018
| MR MACGOWAN |
Applicant
And
| MS KOOPMAN |
Respondent
REASONS FOR JUDGMENT
This interim hearing was held on 24 October and 1 November 2019. The subject child is [X] born … 2015.
A significant issue at this interim hearing was whether the father should continue to spend supervised time with the child or whether it should progress to unsupervised time. In this context, inter alia, the father’s mental health was the subject of documentary evidence and submissions. The father has spent supervised time with the child since about November 2018.
Background
The father commenced these parenting proceedings on 4 September 2018. He sought interim parenting orders, inter alia, that the child spend time with him for a period of four weeks at a supervised Contact Centre for two hours each week; then the next eight weeks on each Saturday from 9AM to 8PM; and then every second weekend from Saturday from 9 AM to Sunday afternoon at 4PM, and every Wednesday and Friday from 3PM to 8PM. The father sought final parenting orders that, inter alia, the child lives with him and spend time with the mother as agreed between the parties in writing.
At the first return date, 17 October 2018, orders were made, inter alia, appointing an ICL.
On 6 December 2018, the Court made orders that the father provide certain information relating to his previous mental health treatment to the ICL; and by consent interim parenting orders were made that the child live with the mother; and the child spend supervised time with the father each alternate Saturday for no more than two hours at Area B Contact Service.
On 11 March 2019 the Court made orders, inter alia, that a report be prepared for the Court by the father’s treating psychiatrist Dr C, with the father to pay the costs of Dr C’s report. A notation was made that the ICL shall make enquiries with Legal Aid NSW in relation to funding the preparation of a single expert report. An interim hearing was appointed on 14 June 2019, the issues being the nature and extent of the child’s time with the father.
On 11 March 2019 the father filed an Amended Initiating Application seeking interim parenting orders, inter alia, that the child live with the mother; the parties have equal shared parental responsibility for the child; that the father’s time with the child is to be unsupervised; and that the child spend certain time with the father on a graduating basis. He sought final parenting orders that the child live with the mother; and that the father’s time with the child be unsupervised, and that he spend certain time with the child.
On 16 May 2019 Dr C’s report dated 2 April 2019 was released to the parties and the ICL.
On 14 June 2019 the interim hearing did not commence because the father had filed a fresh Affidavit sworn 14 June 2019 and sought, in Court, to adduce further evidence. The interim hearing fixture was adjourned to 16 August 2019.
The Court refers to the lengthy notation made by the Court on 14 June 2019, inter alia, in which the Court respectfully requested the father to seriously consider the recommendations of psychologist Ms E dated 10 March 2019, in particular paragraph 8.2 of that report, in which she stated her opinion that it was imperative for the father to engage with a psychologist. The notation also drew the father’s attention to the opinions and recommendations of Dr C psychiatrist made in his report dated 2 April 2019, in particular the last three paragraphs of that report on page 16.
(The Court observes that that report of Ms E was obtained at the instance of the father’s then solicitors. Those solicitors had requested that psychologist to undertake a psychological assessment of the father and provide a report addressing certain matters – see the letter dated 8 March 2019 from those solicitors to the psychologist and being Annexure A to the Affidavit of the psychologist filed 14 March 2019. This report is further discussed below.)
At the adjourned interim hearing on 24 October 2019, ultimately the Court adjourned that hearing part heard to 1 November 2019, with the Court noting that it expected the ICL to put forward a detailed Minute of Order that the ICL contended as the appropriate interim parenting orders to make, including in relation to the appointment of an independent psychiatric or psychologist expert.
At the further interim hearing held on 1 November 2019, by consent, the Court made interim parenting orders that the mother provide the father with 5 to 10 photographs of the child each month through the legal representatives; that the parents utilise a communication book for the purpose of communicating information between each other about the child; and that the mother contact the father via email in the case of medical emergency only concerning the child. A further order was made appointing Dr D as the Court single expert witness, to enquire into and prepare a report upon matters relating to the welfare of the child. Inter alia, Dr D was requested to consider whether the father suffers from a mental illness, and if so what are the diagnoses of such mental illness and the impact of this upon his parenting capacity.
Proposals
The father, at the interim hearing, sought orders, inter alia, to spend unsupervised time with the child in a four stage process as set out on page 3 of his case outline filed 24 October 2019.
The mother, at the interim hearing, sought orders, inter alia, in relation to the preparation of a single expert psychiatric report. The mother sought the continuation of the child’s supervised time with the father.The mother, in the alternative, sought interim parenting orders in accordance with exhibit D: inter alia that the child spend time with the father under the supervision of the Town A Children’s Contact Service (Relationships Australia) as part of the group supervised contact service at times as nominated by Town A Children’s Contact Service.
The ICL, in her case outline dated 13 June 2019, inter alia, supported the continuation of the child’s supervised time with the father at the Area B Contact Centre. The ICL, in that case outline, on page 1, stated the ICL’s position as including orders seeking that the father continue to attend upon his psychiatrist and comply with the regime of medications as prescribed by his psychiatrist. Further, the ICL sought orders that upon receiving confirmation from the father’s psychiatrist in writing that the father was currently on medications and was doing well, then the time with the child could proceed to unsupervised time.
Materials
The father relied upon:
a)his Affidavits filed 14 June 2019, three Affidavits filed 12 September 2019 (one of which included the short report of Dr C dated 2 July 2019), 8 October 2019;
b)the report of Dr C psychiatrist dated 2 April 2019;
c)Child Dispute Conference Memorandum dated 28 February 2019;
d)Notice of Risk filed 4 September 2018.
The mother relied upon the documents referred to on page 1 of her case outline.
The ICL relied upon the documents referred to on page 1 of her case outline.
The Court has had regard to the Affidavit of the father filed 11 March 2019, and the Affidavit of the psychologist, Ms E, filed 14 March 2019.
Agreed facts unless otherwise stated
The father is aged 39 years. The mother is aged 35 years.
The mother was born in Country F. The mother first came to Australia in May 2009. She is currently a permanent resident of Australia. The mother asserts that she works part-time as a healthcare worker. The father asserts he works as a driver.
In about 2010 the parties were married in Australia. In July 2016 the parties separated under the one roof until September 2017.
A final order and Apprehended Domestic Violence Order was made for the protection of the mother and child against the father on 5 October 2017, being a 12 month order. The mother alleges that the incident leading to this ADVO occurred in September 2017 when the parties had an argument about their finances. The mother alleges that during the argument the father held the mother tightly by the shoulders and verbally abused her in the presence of the child.
The father asserts that he was charged with assault and actual bodily harm upon the mother and was required to appear that the Town G local Court on 4 October 2017. The father asserts that he pleaded guilty to these offences, “as I was intimidated, could not handle the stress and felt that justice would not be served. I pleaded a section 10, however, was denied because the judge said I pleaded guilty.”
The mother alleges that in about mid-January 2018 she told the father that she was not comfortable allowing the child to spend unsupervised time with him given the father’s history of mental illness. The mother alleges that she told the father that she wanted the child’s time to be supervised until the father could provide her with some proof that that he was addressing his mental health issue adequately. The mother alleges that the father responded by stating that he didn’t have any mental health issues.
On 17 April 2018 the parties signed a parenting plan in relation to the child stating, inter alia, that the parties agree that the child shall live with the mother; and the parties agreeing that the child spend supervised time with the father. The parties agreed in their parenting plan that the father would do all things necessary to forthwith attend upon a qualified psychiatrist for the purposes of undertaking a psychiatric assessment and forthwith provide the mother with a copy of the psychiatric report from a psychiatrist. The parties agreed to review the contact arrangements in the parenting plan after four months.
The mother alleges that in January 2009 the father’s mother told her that the father had been diagnosed with schizophrenia when he was 16 years old. She alleges that in December 2017, the father’s sister sent her a text message stating that the father first started showing signs of schizophrenia when he was about 15 years, “but I can’t remember the first time he went to hospital maybe around 18.” The father asserts, in this context, that he recalls being depressed between the ages of 15 to 18, and having a breakdown between when he was 18 or 19. He states he recalls getting better around 2005.
The father asserts in his Affidavit filed 11 March 2019 that he was diagnosed with schizophrenia in 1999. He asserts he was prescribed medication. He asserts not wanting to take medication however he followed the advice of the doctors. He asserts that from 2005 to 2010 he would take Seroquel on and off reluctantly as directed by doctors. He asserts that from 2010 he stopped taking Seroquel. He asserted that by 2010 he felt empowered enough to not need to take the medication. The father asserts that he recalled his experience of taking Seroquel as “horrible”. He alleges various adverse symptoms of taking such medication. The father asserts that he has not taken any medication for his schizophrenia since 2010. He asserts that he does not recall experiencing any symptoms of schizophrenia whilst he was on and after he went off medication.
The father alleges, in reply to the Affidavit of the mother filed 15 October 2018, that he recalls that he only ever became angry when the mother would be extremely nasty to him and refuse to accept that she ever did anything wrong. The father agrees that he did grab the mother by her cheeks but he does not agree that he shook the mother for about 10 seconds. The father alleges that in relation to an incident in September 2013 involving the mother, the mother spat directly in his eye. He alleges that the mother tried to kick him to which he responded by catching her foot and throwing it back at her. He agrees that he did spit on the mother’s face. The father does not deny that he verbally abused the mother, after he spat on her face, by stating, “you’re a fucking whore. Go to hell.”
The father asserts in his Affidavit filed 11 March 2019 that, contrary to the mother’s personal opinion, all professional GPs, psychologist and psychiatrists have come to the conclusion that he is of no risk of harm.
The father asserts he is currently single. In his Affidavit filed 11 March 2019 he asserts he lives in a house in Town H with seven other housemates.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Best interests of children
Meaningful relationship primary consideration
The mother has been the child’s primary carer from birth to date. The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.
It was common ground at this interim hearing that the child has been spending positive supervised time with the father. The material before the Court suggests that the father has a meaningful relationship with the child. The child should benefit from the continuance of a meaningful relationship with the father provided it is safe for the child to spend time with the father.
Should the child continue to spend supervised time with the father, at least in the interim, there is a significant prospect that her meaningful relationship with the father can be maintained.
Need to protect primary consideration
The Court now refers to certain health professional material before the Court, whilst acknowledging that that material is presently untested.
The report of Dr C dated 12 June 2018, states, inter alia, that the information contained in his assessment of the father was provided by the father and the doctor has had no access to corroborative information or history from others. The doctor states that the father does not describe any current psychiatric symptoms. The doctor states that the father consulted another psychiatrist earlier this year but he did not have any details of that assessment. The father is not undertaking any current treatment. The doctor stated that the father did not appear to have a current axis 1 psychiatric diagnosis. The doctor states that the father had a history of one brief psychiatric hospitalisation during which he was prescribed antipsychotic medication, but did not describe any psychotic symptoms.
The report of Dr C dated 2 April 2019, and addressed to the ICL, states, inter alia, that the father has consulted him on three occasions being 12 June 2014 (sic 2018), 24 January 2019, and 26 March 2019.
The doctor stated that at all three consultations the father stated that he did not have any current symptoms of mental illness.
The father had reported being hospitalised for three days in the psychiatric unit at a hospital in Brisbane at about age 19 years. He later stated that this admission occurred somewhere between 1999 and 2001. He took medication for a couple of years even though it was “horrible”.
The father was taken to hospital in 2012. He was prescribed medication which he took to appease his mother, sister and ex-wife. The father reported he had consulted a psychiatrist prior to the first consultation on 12 June 2018 but did not provide any details.
Dr C goes on to discuss certain clinical records and notes in relation to the father supplied by the ICL.
Dr C’s mental state examination of the father referred, inter alia, to the father denying that he had previously had psychotic symptoms and that the father believed that his admissions to hospital were the consequences of events in his life and statements made by his mother and sister.
In response to the ICL’s specific questions, Dr C states, inter alia, that the father has had several documented episodes of psychosis, it appears in 1998 and 2012.
Dr C states that the nature of the father’s presentation in 1998 was consistent with a diagnosis of bipolar disorder with periods of elevated and depressed mood. He states that the description of events of the presentation in 2012 is consistent with a paranoid psychotic illness. He states that most of the records between those two admissions are regarding the prescription of medication, do not contain any description of symptoms, but do state he has a diagnosis of schizophrenia.
Dr C states that it is therefore likely that the father suffers from episodes of psychotic illness which are most likely consistent with a diagnosis of Schizoaffective Disorder or possibly a Type 1 Bipolar Disorder with Psychotic Episodes. The doctor states that schizophrenia is a possible diagnosis but schizoaffective disorder appears a more likely diagnosis in view of the description of mood swings in 1998.
Dr C states that the father is not currently taking any psychiatric medication. He states the father did not describe any psychiatric symptoms during the consultations with himself and he did not advise the father to take any psychiatric medication.
Dr C’s prognosis states, inter alia, that the father has had at least two episodes and possibly as many as four episodes of psychiatric illness and been admitted to hospital in 1998 and possibly twice in the period 2001 to 2004. He states the father has taken mostly antipsychotic medication and sometimes an antidepressant medication as an outpatient at various times, but not continuously, since 1998. Dr C states the father requires careful follow-up and may need to be prescribed psychiatric medication if he relapses into a psychotic state and/or has recurring mood swings. He states he has not had access to the father’s medical records until now. He states that he has therefore not discussed with the father the possibility of recommencing medication as prophylaxis against further relapse “but this would obviously be indicated at this stage”.
The short report of Dr C dated 2 July 2019 states that the father attended for review on 2 July 2019. Dr C states there was no evidence of psychosis or mood swings and that, “We have agreed that he will attend every three months for review. We have agreed that there is currently no indication to resume taking psychiatric medication.”
The report of psychologist, Ms E, dated 10 March 2019 was obtained by the father’s former solicitors.
The psychologist interviewed the father on 9 March 2019. She had access to certain hospital and other records provided to her by the father’s former solicitors.
The psychologist states that the father self-referred for assessment.
The psychologist states that the father was polite and easy to engage, although he tended to be a poor historian for details and appeared somewhat evasive with specifics pertaining to his mental health and relationship. She stated very little information was gathered on both these areas, aside from a general outline of factual and non-emotional circumstances.
The psychologist states that anosognosia, or complete unawareness of one’s disorder, was demonstrated by the father. He had deeply rooted beliefs about the hostile intentions of his mother and sister who were proactive in his previous hospitalisations, and was reluctant to consider a possible diagnosis of schizophrenia. Behaviours and symptoms that contributed to his involuntary admission to hospital tended to be minimised or justified.
Under the heading “Social history”, the psychologist states that currently the father’s social life consists of games every weekend. She states the father is not very close to his housemates, and indicated that he is too busy with life stressors to make more time for socialising. The psychologist observes that medical documents noted severe social withdrawal/isolation as a historical sign of the father’s symptom deterioration and relapse.
Under the heading “Opinion”, the psychologist states, inter alia, that the father’s period of depression, coinciding with the period of his parents’ separation, not unlikely contributed to his first psychotic episode, serving as a stressor triggering symptoms.
The psychologist stated that on assessment the father’s thought processes showed a range of potential disorganisation associated with schizophrenia including tangential and circumstantial speech, poverty of speech and speech content, and thought blocking.
The psychologist stated that the father’s ongoing anosognosia and reluctance to engage in treatment appears to be hampered by his lack of trust towards family members and health professionals. This is likely associated with the circumstances surrounding his hospital admissions, belief that he is being targeted, as well as his general high functioning capacity in between episodes. The psychologist states the father is in dire need of psycho-education and insight development into his symptoms within an environment of safety and trust, in order to better manage future episodes. The psychologist states that having said that, it is important to note that given the paucity of current health information provided by the father, a firm conclusion is unable to be made as to his current mental health status.
The psychologist goes on to provide a provisional diagnosis of schizophrenia, with multiple episodes, currently in full or partial remission.
The psychologist states that due to time constraints, a comprehensive parental capacity assessment was not conducted for the report. The writer was therefore unable to give a conclusion on the matter. The psychologist states that in terms of supervised contact with the child, the present assessment identified no imminent risk to self or others, nor any identifiable or reportable potential risk to a child should the father have been caring for children. The psychologist goes on to state, “However, given the inclusiveness of the father’s current mental state, it is advised that he be well engaged with a psychologist or psychiatrist in order to understand his mental health issues, learn about parenting approaches and strategies for parents with a mental illness, and develop a plan for any future episodes.”
Under the heading “Recommendations and prognosis”, the psychologist states, inter alia, that there is no information available over a period of 13 years, following what appear to be a volatile decade for the father. Thus a comprehensive psychiatric assessment and report document is recommended to provide an update of the father’s current mental health status.
Finally, the psychologist states that although the psychiatric literature confirms that remission is possible in individuals suffering from schizophrenia, it is not uncommon for symptoms to reappear across the lifespan when triggered by, for example, intense stress or non-compliance with medication. “It is therefore imperative for (the father) to engage with a psychologist with whom he can develop trust over time, be provided with psycho-education to increase insight and awareness, and psychological intervention for his symptoms (both old and current), relapse prevention, and self-monitoring and management.”
The letter from Area B dated 20 September 2019 states, inter alia, that that contact service has been facilitating contact for the father since November 2018. It states that the contact centre is of the view that “this matter no longer requires the level of supervision that is provided at (the contact centre). It is not the role of the (the contact centre) to determine whether supervised contact is required or not. (The contact centre) is suggesting this matter would be suited for a service such as the playgroups provided by Town I or Town A Contact Centres or through a service such as Family Service J in the community…. (The contact centre) therefore request that this family consider its options as to what is the best step in moving forward.”
The Child Dispute conference Memorandum dated 28 February 2019 states, inter alia, that the father told the family consultant that he does not feel he that he has any difficulties with his mental health nor does he have any issues with parenting.
On the material before the Court, there is an unacceptable risk of harm posed to this young child if spending unsupervised time with the father. The Court is concerned that the father’s mental health issues, as discussed by Dr C, psychiatrist (particularly in his report dated 2 April 2019), and Ms E, psychologist, in particular, have not been adequately treated. The Court is concerned that should the father experience an adverse mental health episode, for example, a psychotic episode, when spending unsupervised time with the child, the child could be placed at risk of harm, whether psychological and/or physical.
The father is not taking medication for his mental health issues. Whilst the short report of Dr C, psychiatrist 2 July 2019 states that the father and the psychiatrist “have agreed that there is currently no indication to resume taking psychiatric medication” (with the Court observing that no content is given in the short report to, inter alia, the nature of any discussions between the father and the psychiatrist in relation to such agreement), this is somewhat at odds with the earlier report of Dr C of 2 April 2019 which, at the end of that report, states, “I have not had access to his medical records until now. I have therefore not discussed with him the possibility of recommencing medication as prophylaxis against further relapse but this would obviously be indicated at this stage.” (Court’s italics)
Further, there is a significant suggestion on the material before the Court that the father lacks insight into his mental health issues. This is of concern to the Court particularly in view of the psychologist Ms E’s comments, inter alia, that it is imperative that the father engage with a psychologist to be provided with psycho-education to increase insight and awareness, and psychological intervention for his symptoms, relapse prevention, and self-monitoring and management.
The psychologist had stated that the father was in dire need of psychoeducation and insight development with symptoms in order to better manage future episodes. As to the potential for future episodes, the Court refers to that psychologist’s comments that the psychiatric literature confirms that remission is possible in individuals suffering from schizophrenia but that it is not uncommon for symptoms to reappear across the lifespan when triggered by, for example, intense stress, or non-compliance with medication.
The above concerns can be addressed and minimised at this interim stage by the father continuing to spend supervised time with the child. In the view of the Court, the mother’s alternative parenting proposal, Exhibit D, proposing, inter alia, that the child spend time with the father under the supervision of Town A Children’s Contact Service (Relationships Australia) as part of their group supervised contact service, will adequately afford safety to the child when spending time with the father. In this regard, the Court refers to the letter of the Area B Contact Service to the father dated 20 September 2019 stating, inter alia, that, “this matter would be suited for a service such as the playgroups provided by Town I or Town A Contact Centres..” The Court notes that the mother’s solicitor informed the Court that the group supervised contact service also affords parental education to its participants which will be helpful to the father.
The mother makes allegations of family violence perpetrated against her by the father. Significant denials in this context are made by the father although he does concede grabbing the mother’s cheeks in one incident, and does not deny verbally abusing her at one point. These allegations and the father’s quite limited admissions in this regard, together with the history of the father’s two convictions for assault in 2017, tend to confirm the Court’s concerns that there presently exists an unacceptable risk of harm posed to the child in spending unsupervised time with the father.
The Court acknowledges that the child was permitted by the mother to spend unsupervised time with the father in late 2017 for certain periods and up to about mid-January 2018, apparently without incident. The Court acknowledges that the child has spent positive supervised time with the father and for a considerable time now. The Court acknowledges that the father attended the course Parenting after Separation – Focus on Kids over six sessions from late May 2019 to late June 2019 with the father attending five of the six sessions. Despite these matters, the Court’s above concerns remain.
There is force to the submission of the ICL that it would not be appropriate nor in the best interests of the child for the mother to supervise the child’s time with the father. The ICL quite properly referred the Court to the father’s oral submission at the commencement of the interim hearing on 24 October 2019 that in his view the mother demonstrated signs of being a psychopath with an unstable mind.
In due course, the Court will be assisted by the single expert witness report of Dr D, psychiatrist. The Court recognises that Dr D, according to the ICL, may not be available to conduct interviews until July 2020, for the preparation of her prospective report. The Court is of the view that such an independent report is necessary to assist the Court in determining, inter alia, relevant risk issues in these parenting proceedings, in relation to the child. The Court will direct the ICL to take all reasonable steps to have Dr D expedite the preparation of her report.
The Court gives significant weight to this need to protect primary consideration.
Additional considerations
The father asserts that he has paid and continues to pay regular child support.
The father contended that the mother should pay half the supervision fees if the Court ordered supervised time to continue. In the view of the Court, the mother’s alternative proposal in Exhibit D requiring the mother to contribute a modest amount each supervised visit will afford some relief for the father. The mother’s solicitor also informed the Court that the group supervised contact service was a subsidised service. The cost was about $30 per visit. The Court also takes into account that the mother works part time in disability and support youth work, and that her solicitor informed the Court that the mother has a limited capacity to pay half the supervision fees.
In light of the recommendations of Ms E, psychologist, it will be in the child’s best interests that the father be ordered to attend upon his GP to obtain a mental health assessment care plan and then engage with a psychologist for treatment regarding his mental health. Similarly, the father should continue to engage with Dr C and comply with his treatment recommendations.
The mother sought an order for sole parental responsibility. The father seeks an order for equal shared parental responsibility. The child will shortly turn 4 years. The child will be able to begin primary school in 2021. There is no major decision looming for this young child. The Court is of the view that it will not be in the best interests of the child to make any express order for parental responsibility at this interim stage.
Evaluating the above discussed relevant considerations under s60CC of the Act, it will be in the best interests of the child to make the following interim orders:
That the mother and father forthwith contact Town A Children’s Contact Service (Relationship’s Australia) to arrange initial intake assessments for Group Supervised Contact (ph: …)
That the child, [X] born on … 2015, spend time with the father under the supervision of Town A Children’s Contact Service (Relationship’s Australia) as part of their Group Supervised Contact service at times as nominated by Town A Children’s Contact Service.
That for the purposes of order 2 herein:
(a)The mother and father shall comply with any appointments made by the service for supervised time;
(b)The father is responsible for payment of fees for supervised time as assessed by Town A Children’s Contact Service (and it is noted that the fees are assessed according to a sliding scale) and the mother shall contribute up to $10 per visit;
(c)The mother and father follow all reasonable requests and directions of Town A Children’s Contact Service.
That until such time as a placement for Group Supervised Contact becomes available at Town A Children’s Contact Service, that the child [X] shall continue to spend supervised time with the father at Area B Contact Service in accordance with order 2 of consent orders made on 6 December 2018 and in accordance with the current arrangements and schedule.
That the father forthwith attend upon his G.P. to obtain a Mental Health Assessment Care Plan, and if a Care Plan is made, then the father shall consult a psychologist as recommended by his G.P. for treatment regarding his mental health.
That the father attend upon his psychiatrist Dr C, as required and at such frequency as recommended by Dr C, and continue to attend upon Dr C (or such other mental health practitioner for a period as deemed necessary by them.
That the father comply with all reasonable directions and recommendations of Dr C and any psychologist upon whom he attends about his mental health treatment, and such treatment may involve therapeutic intervention counselling, courses and prescribed medication.
Direct the ICL to take all reasonable steps to have Dr D expedite the preparation of her expert report.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 9 November 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
-
Remedies
0
3
2