Monroe and Purdue

[2018] FamCA 25

FAMILY COURT OF AUSTRALIA

MONROE & PURDUE [2018] FamCA 25

FAMILY LAW – CHILDREN – Interim Parenting orders – Where the child lives with the father and spends supervised time with the mother – Where the mother seeks an increase in the time she spends with the child and that some of that time be unsupervised – Where the single expert recommended that the mother complete a course of dialectical behaviour therapy before being permitted to spend unsupervised time with the child – Where a cautious approach should be taken when making interim parenting orders – Where it is in the best interests of the child for supervised time with the mother to continue pending the final hearing.

Family Law Act 1975 (Cth) ss 60CC, 61DA(3)

Goode and Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
SS v AH [2010] FamCAFC 13

APPLICANT: Ms Monroe

RESPONDENT: Mr Purdue

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

FILE NUMBER: SYC 1376 of 2017

DATE DELIVERED: 25 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 22 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: LegalHAND

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT: Jordan Djundja Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

The Court notes:

1. The parties shall within seven days do all acts and things to enrol in and join My Family Wizard application (“the application”) and shall forthwith use the application for all parental communications.

2. The mother intends to enrol in and complete the Circle of Security course and commence Dialectical Behaviour Therapy (“DBT”) forthwith and continue her current treatment with Dr B.

The Court orders:

1. That, except in the case of an emergency, only the mother and the father are to attend medical appointments with the child.

2. Any medical appointments, other than in emergencies, are to be made outside the ordinary working hours of the father and at times that give both parents a reasonable opportunity to be present.

3. Notwithstanding the orders made on 28 April 2017 (which are otherwise to continue) the child shall not spend time with the mother on 30 and 31 January 2018 but instead the child is to spend time with the mother from 5.00 pm on 29 January 2018 to 4.30 pm on 30 January 2018, provided that the time is supervised by one of the supervisors permitted by the orders of 28 April 2017.

4. Notwithstanding anything in the orders of 28 April 2018, the child is to spend time with the mother from 8.00 am to 12.00 noon on Mother’s Day, such time to be supervised by the maternal grandmother.

5. The father is to do all acts and things necessary to provide written authority to C Group permitting supervised time to take place at Suburb D Aquatic Centre.

6. Upon having completed three months of DBT psychotherapy the mother shall authorise her DBT therapist to speak to Dr E or, if Dr E refuses to do so, to speak to the Independent Children’s Lawyer as to the mother’s progress.

7. The Independent Children’s Lawyer is authorised to provide a copy of Dr E’s report to the DBT therapist.

8. Nothing in these orders is intended to affect the continuation of the undertakings given by Mr Monroe, Ms Purdue and Ms F Monroe.

9. Liberty is granted to the Independent Children’s Lawyer to relist this matter on 7 days’ notice.

The Court further notes:

1. The parties have agreed that the time in Order 5 will commence at 9 am and will be supervised by at least one of the permitted supervisors in lieu of C Group.

2. The parties have also agreed that the child will spend time with the mother from 4 pm on Wednesday 31 January 2018 to 7 am Thursday 1 February 2018 subject to the usual supervision.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Monroe & Purdue has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1376 of 2017

Ms Monroe

Applicant

And

Mr Purdue

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By an Application in a Case filed on 15 December 2017, Ms Monroe (“the mother”) sought to increase the time she spends with her daughter G (“the child”), born in 2016, that a majority of that time be unsupervised, and that changeovers occur at a contact centre.  She also sought an order for equal shared parental responsibility.

2. In response, Mr Purdue (“the father”) sought sole parental responsibility for the child and that any time the child spends with the mother be supervised.

3. During the hearing on 22 January 2018, each of the parties modified their position.  The two significant matters of dispute that remained for resolution were whether the current orders, which provide for the child to have supervised time with the mother from 8.00 am each Tuesday to 7.00 am the following day and from 4.00 pm Wednesday to 7.00 am on the following day, should be extended until 12.00 noon on the Wednesday and Thursday and whether this additional time should be unsupervised.  The mother also sought an order forbidding the paternal grandmother from attending medical appointments with the child’s doctor.

4. Neither party pressed for orders in relation to parental responsibility.

5. The narrowing of the issues was largely due to two factors.  Firstly, the mother has arranged to commence Dialectical Behaviour Therapy (“DBT”) on 14 February 2018.  The significance of that will be discussed shortly.  Secondly, the matter has been fixed for a final hearing on 6 June 2018, just some four and a half months away.

6. The Independent Children’s Lawyer (“ICL”), in these circumstances, did not specifically address the orders sought by the mother but did advocate a cautious approach.  I understand that he did not favour the lifting of supervision on an interim basis.

7. The present parenting arrangements are pursuant to the following orders made by Johnston J on 28 April 2017:

   4.That orders be made in accordance with the handwritten Minute of Order filed in Court today signed by me and placed with the Court papers as set out hereunder.

   PENDING FURTHER ORDER:

   1.That the Mother shall spend time with the child as follows:-

   1.1each Tuesday from 8.00am to 7.00am Wednesday;

   1.2each Wednesday from 4.00pm to 7.00am Thursday;

   1.3each alternate Sunday from 8.00am to 5.00pm commencing Saturday, 6 May 2017; and

   1.4from 11.00am to 2.00pm on Mother’s Day, 14 May 2017 supervised by the Maternal Grandmother.

   2.That the time provided for in Order 1.1 and 1.2 shall be supervised by the Maternal Grandfather.

   3.That the time provided for in Order 1.3 shall be supervised by the Maternal Grandmother provided the Maternal Grandmother provides an Undertaking in form consistent with Annexure B to the orders made on 24 March 2017.

   4.That the parties shall do all acts and things necessary to facilitate the Mother spending an additional 3 hours of time supervised by a professional supervision agency at the cost of the father with the parties to take such steps to organise this time within 7 days, such time to occur on a Monday.

   5.That the parties shall:

   5.1notify the other as soon as an appointment has been made for [the child] to attend upon a health practitioner;

   5.2each be at liberty to attend upon any appointment for the child with a health practitioner;

   5.3notify the other parent of any diagnosis, treatment and for other recommendation of the health practitioner in the event that the other parent does not attend any such appointment;

   5.4notify the other parent by way of telephone call in the event that the child is to attend hospital for any reason.

   6.That Orders 3-5 of the orders made on 24 March 2017 continue to the extent necessary to comply with these orders.

   7.It is noted that the Undertakings of [Mr Monroe] and [Ms Purdue] shall continue pending further order.

8. The parties commenced a relationship on 18 July 2014 and separated on 10 November 2016.  After separation the child lived with the mother and spent time with the father.

9. The evidence suggests that the mother has a history of mental illness.  When she was younger she had suffered from anorexia.  In 2010–2011 she developed anxiety and was prescribed Lexapro (an anti-depressant) and Stilnox (a hypnotic).  When the mother was interviewed by Dr E, the single expert psychiatrist, she said that she had post-natal depression and borderline personality disorder.

10. The mother had a psychiatric admission to H Hospital in September 2016.  According to the report of Dr E, the mother was not found to be a risk to the child and the child and the mother were transferred to the Mother and Baby Unit at J Hospital.  Although the stay there was planned for three weeks, the mother discharged herself after four days.

11. On 23 January 2017 the mother wrote a number of suicide notes and took an overdose of drugs.  After receiving the note, the father called the Police who broke into the mother’s home and found her unconscious.

12. The child was placed in the care of the father.  The mother did not see the child until after interim court orders were made on 24 March 2017.

13. Dr E has described the parties’ separation as highly conflicted with a “current lack of trust and problematic perceptions of the other’s behaviours” (Single Expert Report dated 22 November 2017, p.23).  The parties’ affidavits confirm this to be so.  Unfortunately, this conflict now extends to the grandparents.

14. Notwithstanding this, Dr E described the child in the following way:

    [The child] presented as a developmentally age appropriate twenty-one month old child with an easy-going temperament.  She was observed to interact comfortably with her parents, [paternal grandmother] and [maternal grandfather].  She has developed a positive connection with them and would be attached to them.  She is in the very unfortunate position of being caught in her parents’ highly conflicted relationship.

    (Single Expert Report dated 22 November 2017, p.23)

Discussion

Parental Responsibility

1. I do not propose to make any orders for parental responsibility.  Ultimately, neither party sought such an order on an interim basis.  Further, such an order is not appropriate at this stage, given that a final hearing is imminent and that the mother is shortly to commence her DBT.  I consider that it is not appropriate in these circumstances for the presumption in favour of equal shared parental responsibility to apply to these orders (s 61DA(3) Family Law Act 1975 (Cth) (“the Act”)).

Best interests of the child

1. Before turning to a discussion of what orders should be made, it is necessary to record that the Court should take a cautious approach when making interim parenting orders. The scope of interim hearings and the time constraints involved preclude the testing of evidence; accordingly, the Court will focus on agreed facts and issues not in dispute (Goode and Goode (2006) FLC 93-286 at [68]). It will sometimes be necessary, however, for a court 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” (SS v AH [2010] FamCAFC 13 at [100]). In making an assessment about what interim orders will be in the child’s best interests, the Court is required to adopt a conservative approach or one which is likely to avoid harm to a child (Marvel v Marvel (2010) 43 Fam LR 348 at [120]).

2. In determining what orders should be made, regard must be had to the considerations listed in s 60CC of the Act.

3. As I understand the parties’ submissions, they concentrated on s 60CC(2) and s 60CC(3)(f). In short, the issue was whether an increase in the time the child spends with the mother would strengthen the relationship between them and whether the mother has the capacity to care for the child without supervision. The remaining subsections appear to have no relevance to these limited issues.

4. It is clear from Dr E’s report that the child has developed and maintained a meaningful relationship with each parent that is of great value to her. That, of course, has occurred under the existing orders.

5. The mother’s position is essentially that as Dr E has recommended that in 2018 the child live with the mother three days a week, without supervision and moving to an equal time arrangement in 2019, such orders should be put in place now.  Such orders, she submits, would strengthen the relationship between her and the child.

6. Whilst those are indeed the recommendations of Dr E, they were based upon significant qualifications.

7. Dr E recorded the following:

   [Dr B’s] letter dated 30 January 2017 to a GP described her “serious overdose” as being “very concerning” and added that “due to [Ms Monroe’s] personality vulnerabilities, she is at chronic risk.  Until she gains psychological strategies to deal with her distress, we are limited to pharmacotherapy to moderate her anxiety and impulsiveness”.

   The discharge summary also referred to [Ms Monroe’s] background of “significant early trauma history” (present in the majority of people with BPD).  She was noted to have been “high functioning but (with) recent emotional instability in context of pregnancy and relationship breakdown”.

   [Ms Monroe] has been compliant with medication, although I was concerned about her stockpiling it because of her “chronic intermittent suicidal ideation” (Dr B, 7 October 2016) and [Mr Purdue’s] allegation she had two baskets of assorted medication.

   She has remained engaged with her treating psychologist but in May she was not seeing [Ms K] “on a regular basis” (Dr B, 19 May 2017).  She has not yet participated in a Dialectical Behavioural Therapy (DBT) programme (the treatment of choice for people with BPD), despite [Dr B] having “strongly suggested she attend the DBT programme…at …” (letter dated 30 January 2017).

   [Ms Monroe] has limited insight into her vulnerabilities and the need to address them through intensive DBT psychotherapy, which will address the faulty cognitions which are a critical aspect of BPD.  To her credit, she has developed a helpful yoga practice but this is not sufficient to manage her “anxiety and impulsiveness”.  It is a concern she had not been able to use the resources available in the Mother-Baby Unit at [J].

   Parents with BPD which has not been treated have well documented difficulties with parenting.  At times when the child is being challenging, the parent may react in an abusive manner.  Unfortunately, it seemed [Ms Monroe] experienced this style of parenting during her childhood and adolescence while in her mother’s “drug abusing, chaotic and neglectful environment” (L Hospital discharge summary).

   Given a parent is influenced by how he/she was parented as a child, [Ms Monroe] must psychotherapeutically address her early traumatic experiences.  Currently, she has minimised and dismissed them as being significant factors which continue to influence her wellbeing – and her parenting.

   (Single Expert Report dated 22 November 2017, pp.24–25)

8. When discussing her recommendations, Dr E opined:

   Until more therapeutic structure is in place (unfortunately, the programmes are now likely not to start until 2018), I would not support extended periods of unsupervised or unstructured time between [the child] and [Ms Monroe].

   …

   In 2018, when [Ms Monroe] has participated for a month in a DBT group and Circle of Security course, the requirement for another responsible adult to be present at night could cease, on condition [Dr B], Dr M or Ms K have not indicated they hold concerns about her mental health.

   (Single Expert Report dated 22 November 2017, p.26) (Emphasis in original)

9. Thus it is clear that the options proposed by Dr E for unsupervised time were subject to the mother participating in DBT and each of her treating medical practitioners indicating they have no concerns about her mental health.  The DBT has not yet commenced and Dr M, the mother’s general practitioner, is yet to express an opinion.

10. It is true that Dr E offered a “suggestion” that the mother could have unsupervised time for 24 hours only.  However, that was on the basis that the mother “should attend her current parents’ group on the first day” and has the child in daycare on the second day (Single Expert Report dated 22 November 2017, p.26).

11. Neither of these options is possible under the order proposed by the mother, as her parents group meets on a Monday and there are no arrangements for the child to attend daycare.

12. The mother’s attitude to DBT has been equivocal and it is fair to say that it is the report of Dr E that has led her to undertake the therapy.

13. In an affidavit of 15 December 2017 the mother said that “I have never been formally referred to DBT by any of my treating medical practitioners, in some of my sessions with Dr B, it has been raised and we have discussed it” (at paragraph 10).  Even so, by that time she had arranged an appointment for that therapy in February 2018.

14. The mother also relies on the following passages from the report of Dr B, her psychiatrist, of 26 December 2017:

    5.        Any diagnoses made by you.

    My diagnoses are postnatal depression in full remission on a background of borderline personality disorder with anorexia nervosa in full remission.  In addition, I believe [Ms. Monroe] presented with an adjustment disorder with depressed mood and anxiety precipitated by her lack of contact with her daughter.  At my last review the mood component had largely resolved, with anxiety remaining in evidence.

    …

    9.Please provide full details of your involvement with [Ms. Monroe] and whether or not you have been involved with any plan to restore [the child] to her mother’s care.  If so, please provide details of professional opinion as to [Ms. Monroe’s] capacity to care for and meet the needs of her child, if you believe you are in a position to provide such an opinion.

    I have continued to review [Ms. Monroe] on a one to two monthly basis.  I have monitored her mental state, risk and provided supportive psychotherapy.

    It is beyond my area of expertise to formally comment on [Ms. Monroe’s] parenting abilities.  I reiterate I am of the opinion that [Ms. Monroe’s] psychiatric conditions are not severe enough to impact her ability to care for [the child].  During this period [Ms. Monroe] has engaged in psychotherapy and yoga to manage her distress and anxiety.  She has not been idle in attempting to improve her mental health.  This in turn assists [Ms. Monroe] to be the best parent she can be for her daughter.  I do not feel [the child] is at risk from her Mother.

15. However, Dr B also said:

    7.Any further treatment you have prescribed and/or considered to be helpful to [Ms. Monroe].

    Once custodial arrangements have been formalized, I expect [Ms. Monroe’s] distress and anxiety will reduce and we will be able to decrease and cease her sedatives.  I would suggest she continue seeing her psychologist on a regular basis and she will attend the DBT group to improve her affect regulation and distress tolerance.

16. This is largely consistent with, but less imperative than, what Dr B said in a letter to the mother’s general practitioner on 30 January 2017.  There Dr B said:

    At my review today, she was not suicidal and was forward planning.  I reiterated a system of safety should [Ms Monroe] be in a similar situation in the future, including contacting the Acute Care Team or Lifeline.

    …

    …I believe [Ms Monroe] would benefit from intensive psychotherapy from a psychologist who specialises in DBT and I have also strongly suggested she attend the DBT Programme here at [N Hospital].

1. This recommendation is more emphatic than the discussion referred to by the mother in her affidavit.

2. In any event, the mother has now decided to undertake therapy.

3. Taking all this evidence together it suggests that a successful course of DBT will assist the mother to develop psychological strategies to deal with her distress and that a course should be undertaken prior to the child spending unsupervised time with the mother.

4. It is true that Dr B’s opinion is that the child is not at risk from the mother and the mother’s “psychiatric conditions are not severe enough to impact her ability to care for [the child]” (Updated report of Dr B dated 26 December 2017, paragraph 9).

5. On an interim hearing, I prefer the more cautious approach recommended by Dr E and am of the view that unsupervised time should await the outcome of the DBT.  This is particularly so when the mother is about to commence DBT and a final hearing will immediately follow the completion of that course of therapy.

6. I do not overlook the evidence that her present diagnosis by Dr B is “an adjustment disorder with depressed mood and anxiety precipitated by her lack of contact with her daughter” (Updated report of Dr B dated 26 December 2017, paragraph 5).  Dr B also believes the mother’s distress and anxiety will reduce once parenting arrangements have been formalised.  It is partly for this reason that the final hearing has been listed as soon as possible.

7. It is an easy inference to draw from this evidence that if the mother’s distress and anxiety are reduced she will be a safer, more able and more effective parent.

8. However, the primary task of the Court is to focus on the best interests of the child and her safety.

9. Taking a cautious approach and, as I have said, taking into account the pending DBT and final hearing, I am not satisfied that it is in the best interests of the child for her to spend unsupervised time with the mother at the present time.

10. I turn now to a discussion of the orders prepared by the mother during the course of the hearing, noting that I shall only discuss the contentious orders.

The proposed orders

The notation

1. The mother prepared a notation to the effect that, amongst other things, she was to commence DBT forthwith.

2. The father submits that the notation should read “intensive DBT psychotherapy”, picking up the additional words from the report of Dr B dated 30 January 2017.

3. I do not know whether the course in which the mother has enrolled can be described as “intensive” or “psychotherapy” or, indeed, whether there is any significance in these words or not.  No doubt, if there are any deficiencies in the therapy to be undertaken by the mother, they can be raised at the final hearing.

4. I will make the notation prepared by the mother.

Medical appointments

1. The mother proposed an order that provided for only the mother and the father to attend medical appointments with the child, save in the case of an emergency.

2. It has been the practice of the father to have his mother (“the paternal grandmother”) attend the medical appointments with him.  The paternal grandmother assists him with the care of the child and looks after her whilst he is working.  His reason for doing so is that the paternal grandmother is familiar with the child and could provide useful information to the doctor.

3. As I have noted above, the conflict between the parents has extended to the grandparents. The presence of the paternal grandmother does not assist in this regard and increases the anxiety and distress of the mother.

4. I do not see that any benefit gained by having the paternal grandmother at medical appointments outweighs the distress caused to the mother, which, of course, may have a negative impact on the child.

5. It is, however, necessary to ensure that if the mother makes an appointment the father is able to attend.  Ultimately, I understand the father did not oppose the order sought by the mother if there was provision for appointments to be made at a time when he could attend. His work hours were stated to be Monday, Tuesday and Wednesday from 7:00 am to 3:00 pm although depending upon the location of the work he generally arrives home at 4:00–4:30 pm.

Additional time with the child

1. As I have said, the mother sought that the time the child spend with her on each Wednesday and Thursday be extended from 7.00 am until 12.00 noon and that the additional time not be supervised.

2. For the reasons given earlier, I will not make that order.  The mother did not suggest that there was any possibility of supervision for that extra time.  If there was, consideration would then have to be given to the desirability of that extra time.  For example, it appears that the child attends a playgroup on Thursday mornings which she would have to forego if the order was made.

The child’s birthday

1. The child’s next birthday is in early 2018.  That day is a Tuesday and under the current orders the child would spend all of that day from 8.00 am until 7.00 am the following day with the mother.

2. The mother proposed that this time be brought forward so that the child spends time with her from 5.00 pm on Monday until 4.30 pm on Tuesday.  This would give both parents an extended time with the child on her birthday.

3. The father opposed that order saying that he would prefer to wake up with the child on her birthday.

4. I consider that spending significant time with both families on her birthday is in the best interests of the child and I will make the order proposed by the mother, save that the time will be supervised by one of the existing permitted supervisors.

Mother’s Day

1. The proposed order that the child spend time with the mother on Mother’s Day was not opposed.

Make-up time

1. The mother sought an order that the child spend three hours with her at the current contact centre, at the expense of the father.  This was because that time takes place on Mondays and this week’s time was missed due to the hearing.

2. That was not due to any fault of the father but is rather one of the exigencies of being involved in litigation.

3. That order will not be made.

The location of supervised time

1. The mother sought an order requiring the father to provide a written authority to the contact centre that presently supervises the Monday time, to permit that supervised time to take place at Suburb D Aquatic Centre.  The father opposed the order because he understood that the contact centre would not provide supervision at such a place.  He raised no other objections.

2. I do not know if the contact centre is prepared to undertake supervision, but, if they are, I do not see why the father should prevent it.

Orders sought by the father

1. The father proposed orders permitting the release of the report of Dr E to the DBT therapist.  There was no objection to this order.  Similarly, there was no opposition to an order requiring the mother to authorise her DBT therapist to speak to Dr E or the ICL at the end of the therapy.

2. The father also proposed an order permitting the ICL to relist the matter in certain circumstances.  The better order is simply to grant leave to the ICL to relist the matter if and when he thinks necessary.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 January 2018.

Associate: 

Date:  25 January 2018