Minchell and Cincotta

[2007] FamCA 536

FAMILY COURT OF AUSTRALIA

MINCHELL & CINCOTTA [2007] FamCA 536

FAMILY LAW - CHILDREN – Mother’s mental illness – Interim parenting orders

Goode v Goode (2006) FLC 93 - 286

FATHER: MR MINCHELL

MOTHER: MS CINCOTTA

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: MLF 107 of 2005

DATE DELIVERED: 21 May 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 21 May 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Mr Harper

SOLICITOR FOR THE FATHER: Adams Leyland

COUNSEL FOR THE MOTHER: Ms Ward

SOLICITOR FOR THE MOTHER: Pogson Cronin

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Boyle

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Harris Lieberman Boyd

Orders

1. That the Registrar of Births, Deaths and Marriages be directed to include the details of the father, … born … July 1960 on the register as the father of the child … male born … November 2004, and that an amended birth certificate issue.

1. That the father meet any costs associated with the issue of an amended birth certificate.

1. That until further order the child live with the father.

1. That until further order the father have sole responsibility with respect to medical matters for the child.

1. That the father keep the mother advised in writing of any medical emergency or hospitalisation, or specialist treatment for the child as soon as is practicable, and should the child require an operation, the father shall advise the mother in advance (if practicable) of the nature of the operation required.

1. That pursuant to Part 15.5 of the Family Law Rules 2004, Dr W child and family psychiatrist, be appointed to enquire into and report upon the matters pertaining to the welfare of the child … , and in preparing his report to the court Dr W be requested to consider the following matters :

   (a)The need to protect the child from harm through being subjected and exposed to abuse, behaviour or neglect which may psychologically or physically harm him;

   (b)The nature of the child’s relationship with :

   (i)his mother,

   (ii)his father, and

   (iii)any other significant person ;

   (c)The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party ;

   (d)The impact of the mother’s mental health problems on her capacity to parent the child ; and

   (e)The parties’ respective capacity to provide for the child’s needs including :

   (i)his emotional and intellectual needs;

   (ii)whether any party’s capacity is affected by their use of drugs and/or alcohol;

   (iii)the attitudes of the child and the responsibilities for parenthood demonstrated by each of the parties; and

   (iv)any other matters that Dr W considers relevant.

2. That the remuneration of Dr W be at the current Legal Aid NSW scale for child psychiatrists in independent children’ lawyers matters and the Legal Aid Commission NSW shall meet the costs of the Report.

1. That leave be granted to the independent children’s lawyer to photocopy material produced under subpoena in this matter for the purpose of providing same to Dr W and upon an undertaking from the independent children’s lawyer that copies of same will be destroyed upon conclusion of these proceedings.

IT IS FURTHER ORDERED

1. That all extant applications be adjourned to the next Registrar’s Hearing List in Albury (commencing on 16 July 2007) on a date and at a time to be advised, and the mother may attend such hearing by telephone.

1. That as soon as practicable each of the parties do all things reasonably necessary to apply to use the supervised contact facilities at both the W Children’s Contact Service and the A Children’s Contact Service, including attending any intake interviews or assessments.

IT IS DIRECTED

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

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 107 of 2005

MR MINCHELL

Applicant

And

MS CINCOTTA

Respondent

REASONS FOR JUDGMENT

1. The parties lived together from January 2002 and separated on 19 January 2005.  The father deposed that on that day the mother became hysterical, threatened to kill herself and their son, and attempted to throw the child across the room.  The father took the child and moved to his mother’s home in L.  The child is now two.

2. The child’s father is Mr M aged 46.  The father has four children from an earlier marriage, all of whom are adult, save son S, who is about 17.  His mother, Ms C, is aged 39.  She has a son, B, who is eight or nine and lives with his father.  She has struggled for many years with mental illness.  On 6 May 2005 an apprehended violence order was made, naming the father and the child as the protected persons and the mother as the defendant.  It remained in force until 6 May 2007. 

3. The mother relied on two affidavits sworn by her, which annex a number of reports of observation of treating professionals.  Amongst the tendered documents is a report from the B Clinic in South Australia, prepared in August 2003, which shows a number of voluntary admissions of the mother to mental health facilities.  In the period 1996 to 2002 there were ten such admissions.  The Court also has a report from Dr J, dated 16 April 2007, and hospital records in relation to an admission in February this year, after the mother was transferred from the T Hospital.  The mother was discharged on 23 March 2007, and placed on a community treatment order.

4. The mother is consulting a number of medical practitioners and health professionals, in addition to Dr J.  She has been seeing a GP, Dr P.  She has been receiving long-term support from Dr R.  Annexed to her most recent affidavit are letters from Dr R (dated 10 December 2006) and two other general practitioners, being Dr M (letter dated 25 May 2005) and Dr K (letter dated 27 November 2006).  There is also a letter dated 7 June 2005 from Mr U (a community mental health case worker), one dated 15 August 2005 from Ms Y (a drug and alcohol liaison worker), and a negative urine screen dated 14 July 2005.

5. Presently the mother is also being supported by case managers working with Women's Housing and Support and the T Community Health Service; Ms S is providing housing and other assistance and Ms G is a drug and alcohol worker.  They are with the mother at Court today and I am grateful for their support.  The mother has also deposed to strong support from family, although at this time I have no details of that.  She has recently obtained a learner's permit and hopes that will give her a measure of independence.

6. The father originally filed an application in the Local Court in August 2005, which was then transferred to this Court.  The mother's mental health problems have meant that she has not been able to take a role in the proceedings as she might have wished.  For example, she was a hospital inpatient at the time interviews were held for the family report.  However, she now says she is making good progress, her mental health problems are being addressed and she is ready to make a commitment to her son.

7. To the parties' credit, they have agreed on a number of parenting orders.  One will ensure that the father's name is placed onto the register of births, deaths and marriages in New South Wales, which is important.  They have also agreed that, in the interim, the father will have parental responsibility for the child in relation to medical matters.  That will ensure appropriate treatment were a medical crisis to arise.  The father has agreed to keep the mother advised in writing of any such medical emergencies.  They have also agreed that both will attend on Dr W, who is a child and family psychiatrist, for an assessment and report.  They have agreed on the ambit of that assessment and on procedural matters.

8. What is in issue is whether the mother should start spending time with the child now.  She has not seen the child since he was a couple of months old.  Ms B, who prepared the family report, found that the child has no concept of a mother.  To him, she would be a complete stranger.  The child is doing well, and would of course benefit from a meaningful relationship with his mother.  Soon, he is likely to start asking about her. 

9. The mother’s proposal before the Court prior to her most recent hospital admission, was, the family reporter thought, far too ambitious, even without considering the mother's health and parenting capacity.  Ms B recommended that the Court evaluate the mother's capacity to participate in the court process and to attend for further psychosocial and psychiatric assessment.  If optimistic on those scores, there should be an evaluation by a forensic psychiatrist of her status and capacity to exercise a parenting function.  The orders the parties have agreed upon will achieve that evaluation.

10. The mother seeks some time with her son as soon as possible and, to achieve that, would like to see him in the W Contact Centre.  Her counsel has advised that there is no place currently available at that centre and some four or five families ahead in the queue.  The parties anticipate the case will be ready to return to Court in July or August.  The odds are low that a place will become available at the W Centre by then.  Nevertheless, I am satisfied it is in the child’s best interests for the Court to put in place the process which will allow the family to use a centre, if and when an order is made providing for the mother to spend time with the child.

11. The parties should apply to use the facilities at both the A Contact Service and the W Contact Service.  If accepted, they can take their place in those queues.  If the Court finds, after considering Dr W’s assessment and other evidence then before it, that the mother should spend time with the child, there will be a safe place to commence that contact.

12. I do take account of the importance to children of having meaningful relationships with both parents and of the importance of protecting children from harm.  At this stage there are too many uncertainties about the mother’s health and capacity and too little expert evidence about the best way to introduce the child to his mother, if she is well enough for that to occur. 

13. The reports the mother relies on indicate how fragile has been her position and her equilibrium.  She is trying to do her best, and to take advantage of the very good support available to her.  It is to be hoped that she can build on these gains and reach a level of stability that has eluded her in recent years. 

14. I am mindful of the legislative requirement to consider, (even at this stage; see Goode v Goode (2006) FLC 93 – 286) whether there should be an order for equal shared parental responsibility. I say with confidence that would not be in the child’s best interests at this time.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MINCHELL & CINCOTTA