Mornony & Nicolle (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mornony & Nicolle (No 3) [2023] FedCFamC1F 552

File number MLC 6366 of 2019
Judgment of WILSON J
Date of judgment 5 July 2023
Catchwords

FAMILY LAW – PARENTING –– father seeking orders for sole parental responsibility and for the children to have no time with the mother – expert evidence that there is an ongoing risk to the children if they spend time with the mother – held, the father to have sole parental responsibility and the mother to have no time with children.

FAMILY LAW – PROPERTY – modest property pool consisting of superannuation only – mother seeking orders for equal division of superannuation – since separation father has had primary care and primary financial responsibility for the children – held, superannuation split ordered in accordance the father’s proposal.   
Legislation

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 138

Family Law Act 1975 (Cth) ss 4AB(1) and (2), 60CA, 60CC(2)(a)-(b), (2A) and (3)(a)-(l), 61DA(1), 61DA (2)(b), 64B(2)(b) and (c), 68Q, 79 and 90XT(1)(a)

Family Law (Superannuation) Regulations 2001 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).Rule 8.19

Surveillance Devices Act 1999 (Vic) ss 11 and 11(2)(b)(ii)

Cases cited

Ashby v Slipper [2014] FCAFC 15

Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297

Bant & Clayton [2019] FamCAFC 198

Blinko & Blinko [2015] FamCAFC 146

BNMB Transport Pty Ltd v Mercedes-Benz Australia Pacific Pty Ltd & Anor [2016] FCCA 2047

Bradshaw v McEwans Pty Ltd (1952) 85 CLR 352

CDJ v VAJ (1998) 197 CLR 172

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission  (2007) 162 FCR 466

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Cornett & Hext (No 4) [2021] FamCA 289

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Evans & Co v Astley [1911] AC 674

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Galea v Galea (1990) 19 NSWLR 263

Gerber & Beck [2020] FamCA 210

Gin v Hing (2019) 63 Fam LR 258

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

Holloway v McFeeters (1956) 94 CLR 470

Honeysett v R (2014) 253 CLR 122

Isles v Nelissen (2022) 65 Fam LR 288.

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581

Jones v Dunkel (1959) 101 CLR 298

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Keane v Keane (2021) 62 Fam LR 190

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lithgow City Council v Jackson (2011) 244 CLR 352

Loddington & Derringford [2008] FamCA 380

Luxton v Vines (1952) 85 CLR 352

M v M (1988) 166 CLR 69

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Malec v JC Hutton Pty Ltd (No 2) (1990)…

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Details
Case
[2023] FedCFamC1F 552
Decision Date

CaseChat Overview and Summary

In the case of Mornony & Nicolle (No 3), the father contested the mother's capacity to care for their children due to her alleged mental infirmities. He sought sole parental responsibility and limited or no time for the mother with the children. The medical evidence presented by various psychiatrists and psychologists played a crucial role in determining the outcome of this case. The father argued that the mother's mental state rendered her unfit for parenting, while the mother maintained her ability to care for the children.

The court was required to assess the credibility and weight of the medical evidence provided by both parties, particularly the reports of Dr B, a consultant psychiatrist. Dr B's assessments of the father and mother were pivotal in determining their respective fitness for parental responsibilities. The court had to consider the father's claim of an adjustment disorder with depressed and anxious mood, which was reported to be in remission. In contrast, the mother was diagnosed with borderline personality disorder and paranoid illness, which raised concerns about her capacity to care for the children safely and effectively.

The court carefully evaluated the medical evidence and concluded that the mother's mental state did indeed pose a risk to the children. Dr B's observations and assessments, particularly the mother's history of paranoid beliefs, rage, anger, and lack of emotional regulation, were deemed significant. The court accepted the father's argument that the mother needed psychiatric treatment to address her disturbed mental state and that her current condition made her unfit to care for the children without appropriate intervention. Consequently, the court awarded the father sole parental responsibility, with the mother's contact limited to supervised visits, pending her engagement in psychiatric treatment.

The final orders of the court mandated that the mother should undergo psychiatric treatment to address her diagnosed conditions. Until such treatment was undertaken, the mother's contact with the children was restricted to supervised visits, ensuring the children's safety and well-being. The father was granted sole parental responsibility, reflecting the court's determination that the mother's current mental state posed a risk to the children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The father asserted that the mother suffered from mental infirmities of such manner and degree that she was not capable of discharging the responsibilities of a parent with the consequence, so the father said, that he should have sole parental responsibility for the children and that the mother should have no time with the children. The medical evidence in this proceeding assumed a high degree of importance. To my way of thinking, it was utile to address that evidence early in these reasons so to that I now turn.THE MEDICAL EVIDENCE IN THIS CASE In this category of evidence I canvas the information given by psychiatrists, psychologists and supervisors. Dr B, consultant psychiatrist, made four reports which he exhibited to his affidavits, all of which were admitted in evidence without objection.Dr B’s 17 October 2019 report When this litigation was in the FCCA, his Honour Judge Riethmuller (as the Honourable Justice Riethmuller then was) ordered a psychiatric assessment of both the mother and the father. After extensively considering the father’s history, Dr B assessed the father as having an adjustment disorder with depressed and anxious mood then in remission. So far as the mother was concerned, after extensively considering her history, Dr B said the following –(a)the wife held paranoid beliefs in relation to the husband;(b)she was consumed by rage and anger directed to the father;(c)she continually abuses and at times physically abuses him;(d)she alienates herself in the process;(e)she demonstrates little to no insight into the existence of her disturbed mental state, her paranoid beliefs, her errant uncontained rage and aggression, her lack of emotional regulation, her poor judgment and reality testing; and(f)those matters were consistent with borderline personality and current paranoid illness. Dr B reported that the mother urgently needed psychiatric treatment and that the situation was likely to deteriorate further until she engaged in such treatment. Dr B reported that in his opinion the father did not pose a risk to the children. Dr B said he had significant concerns about the mother’s capacity to care for the children and that based on certain audio visual footage seen by Dr B depicting her in a highly disturbed state of ranting, swearing and abusing the children the mother presented as a risk to the children and that until she engaged in appropriate psychiatric treatment serious consideration should be given to changing the children’s residence to ensure their safety.Dr B’s 19 October 2020 report Dr B was requested to report again having reviewed reports of Dr J (psychiatrist) dated 8 November 2019 and a report of Dr K (psychiatrist) dated 13 October 2020, the report of Ms L dated 24 August 2020, the report of Dr M (psychologist) dated 9 December 2019 as well as Dr M’s report dated on 8 October 2020. Dr B expressed the view that having read those reports Dr B remained of the opinion that the children were at risk in the care of their mother and that the mother needed to undergo psychiatric treatment designed for individuals with personality disorder.Dr B’s 11 November 2021 report

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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