MORRIS & SOMERS

[2015] FamCA 1086

FAMILY COURT OF AUSTRALIA

MORRIS & SOMERS [2015] FamCA 1086

FAMILY LAW – CHILDREN – Interim parenting – Best Interests – Parenting orders pending final judgment – Where there are risks associated with the mental health of the mother – Where there are risks of substance abuse, anger management and violence associated with each of the parents – Where the child had been mainly living with the mother – Where the single expert psychiatrist report had been released prior to the hearing and orders made for the child to live with the father and suspending any time with the mother – Where there will be no order for equal shared parental responsibility – Orders made pending final judgment that the child live with the father and spend supervised time with the mother.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA
APPLICANT:	Ms Morris

RESPONDENT: Mr Somers

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 745 of 2009

DATE DELIVERED: 7 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 30 November – 3 December 2015

REPRESENTATION

APPLICANT MOTHER	In Person
COUNSEL FOR THE RESPONDENT:	Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 745 of 2009

Ms Morris

Applicant

And

Mr Somers

Respondent

And

Legal Aid New South Wales

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings about B (“the child”) who is 11 years of age. The dispute between the parents involves competing claims for sole parental responsibility and for exclusive residence with no time proposed with the other parent. The important issues in the proceedings involve the mental health of the mother and the risks for the child with substance abuse, anger management and violence associated with each of the parents.

2.The final hearing was conducted over four days from 30 November 2015 to 3 December 2015. At the conclusion of final submissions interim parenting orders were made pending delivery of final judgment. The terms of the orders made on 3 December 2015 are attached to these reasons.

3.The issues will be developed in some detail in the final reasons for judgment but these are the reasons for making those interim orders.

Applications

4.At the conclusion of the trial the Independent Children’s Lawyer (“ICL”) submitted a minute of orders which sought both final orders and orders to be in place pending the making of final orders. The interim orders sought are as follows:

1.     Orders are made in the terms of paragraphs 1 to 13 under the heading Interim Orders in the document titled “Orders Proposed By ICL” (Exhibit 20 dated 3 December 2015), as set out hereunder:

1.That, until further Order of this Court, the child, [B], born … 2004, live with the father.

2.That, until further Order of this Court, [the child] is to spend supervised time with the mother as follows:

a.The time is to be supervised by Connecting Families;

b.The time is to occur on one occasion prior to Christmas Day 2015 for a period of 2 hours;

c.The father is to pay the cost of supervision on the occasion referred to in Order 2(b);

d.The Court NOTES that the father agrees to [the child] spending time with his mother after Christmas 2015, on one occasion each calendar month for a period of 2 hours, supervised by Connecting Families, and agrees to pay the cost of such supervision, provided that there are no significant concerns reported by the supervisor after the time spent in December 2015.  

3.That the mother be at liberty to forward letters, cards and gifts to [the child] by mail to the father’s home address.

4.That the father ensure that any letters, cards or gifts received for the child from the mother are passed on to [the child] provided that the father considers them to be appropriate. 

5.That the father forthwith contact [Dr C], Psychologist, or such other therapist recommended by the Independent Children’s Lawyer, and make the earliest available appointment with [Dr C] for counselling to support [the child] in relation to the current parenting arrangements.

6.That the father forthwith obtain a Mental Health Care Plan for himself and [the child] so as to be entitled to the Medicare rebate in respect of [Dr C’s] fees.

7.That the father be responsible for payment of [Dr C’s] fees, subject to any Medicare rebate.

8.That the father ensure that [the child] attends counselling with [Dr C] as requested by her.

9.That the father attend any counselling sessions with [the child] (or alone) as requested by [Dr C].

10.That the father follow all reasonable directions made by [Dr C] for the purposes of assisting and supporting [the child].

11.That the Independent Children’s Lawyer have leave to provide to [Dr C]:

a.A sealed copy of these Interim Orders.

b.A copy of [A/Prof D’s] reports dated 29 January 2010, 11 June 2013 and 18 November 2015.

12.That the counselling conducted by [Dr C] pursuant to these Orders shall be confidential and unreportable, expect that the Independent Children’s Lawyer may have discussions with [Dr C] from time to time in relation to the progress of counselling and any recommendations [Dr C] may have.

13.The Court NOTES that [Dr C] may communicate with the mother if [Dr C] considers it beneficial to her the child’s treatment.    

2.     Until further order the mother be restrained from attending at any school which the child, [B] is enrolled.

3.     Otherwise judgment is reserved.

5.The father agreed with the proposed orders save that he sought an additional order to the effect that the mother be restrained from attending at a school at which the child is enrolled.

6.In her submissions the mother did not specifically address the interim orders sought nor did she propose any different interim orders. That said, the mother did not consent to the interim orders proposed.

Written Evidence

7.For the purposes of the substantive hearing, the mother relied on:

·Affidavit of Ms E filed 26 March 2009;

·Affidavit of Ms F filed 30 March 2009;

·Affidavit of Ms G filed 1 April 2009;

·Affidavit of the mother filed 29 April 2010;

·Affidavit of Ms F filed 12 May 2010;

·Affidavit of the mother filed 22 November 2011;

·Affidavit of the mother filed 20 December 2011;

·Affidavit of the mother filed 29 February 2012;

·Affidavit of Mr Morris filed 29 February 2012;

·Affidavit of the mother filed 17 April 2012;

·Affidavit of the mother filed 24 February 2015; and

·Proof of evidence of Mr Morris adopted on 30 November 2015.

8.The father relied on:

·Affidavit of the father filed 20 October 2015.

Expert Evidence

9.The Court had the assistance of three reports from the single expert forensic psychiatrist, Associate Professor D.

The Oral Hearing

10.In addition to the affidavits and various tendered documents that were made exhibits, the Court had the advantage of hearing cross-examination of the parents, the mother’s husband, the mother’s friend, Ms G and Associate Professor D.

Short history

11.The mother was born in 1974 and at the date of hearing was 40 years of age. The father was born in 1979 and at the date of hearing was 36 years of age. The parents commenced their relationship in 2002, and started living together in 2003. They were married in 2004 and separated in 2007. B was born in 2004 and is the only child of the relationship.

12.In 2012 the mother married Mr Morris. They have a son J who is three years of age. Mr Morris has an older son, K who is about the child’s age.

Discussion

13.Since the parties separated in 2007, the child mainly lived with the mother. That continued in 2015 but he also had many periods with the father, including periods overnight.

14.On the day of the release of the most recent report of the single expert, 23 November 2015, and for reasons given that day, an order was made peremptorily placing the child with the father and suspending any time with the mother. There was no meaningful opportunity for a hearing on the merits of that issue on 23 November 2015 and by arrangement with the parties, the issue of the child’s immediate living arrangements was adjourned to 30 November 2015, the first day of the final hearing.

15.On 30 November 2015, I dealt with the issue of where the child would live until the end of the trial. The father and the ICL sought that the Order of 23 November 2015 continue until the end of the trial – 3 December 2015. The mother strongly opposed that course. After taking some evidence in chief from the mother and her husband, Mr Morris, and for reasons given on the day, orders were made, including:

…

2.     The current parenting orders in relation to [B] born … 2004 be varied to the extent that he is to reside with the father until 8.00 pm on Thursday 3 December 2015 and is to spend no time with the mother.

16.In the substantive proceedings the mother seeks that she have sole parental responsibility for the child and that he live with her and spend no time with the father. The ICL seeks a raft of orders but for the immediate term, seeks orders that the father have sole parental responsibility for the child, that he live with the father and spend no time with the mother. The father’s case changed during the trial but he ultimately sought orders in similar terms to those proposed by the ICL.

17.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

18.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests.

19.It is common ground that the father and/or the mother have engaged in family violence. Therefore the presumption in favour of equal shared parental responsibility in s 61DA does not apply. The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. No party seeks an order for equal shared parental responsibility and in my view, in any event such an order would not be practicable because of the paucity of the parents’ relationship.

20.In that there will not be an order for equal shared parental responsibility, I am not required to consider any particular pattern of living arrangement.

21.I have yet to properly reflect of all of the evidence and the extensive submissions of the parties and therefore cannot immediately make final orders.

22.The child has mainly lived with the mother but the existing orders from 2010 have long ago fallen into disuse with a great many changes occurring in the child’s living and schooling arrangements in recent years. For reasons that are not entirely apparent given that the child had recently and regularly moved between the parent’s households, the parents are now completely polarised as to the final orders they seek. I am not confident that they will be able to reach agreement about any living arrangements.

23.The circumstances that gave rise to the orders of 23 and 30 November 2015 still persist and were not excluded by the testing of the evidence of the parents and the other witnesses during the trial.

24.The orders of 23 and 30 November 2015 were largely based on the imperative of s 60CC(2)(b). In these proceedings that imperative together with the ongoing concerns about the mother’s parenting capacity including her mental health; and the family violence and substance abuse in the mother’s household, outweigh for the time being, the importance of the primary attachment of the child to his mother; the child’s wishes; and the identified and potential deficiencies in the father’s parenting capacity. The issue of change is of neutral effect because although interim orders have caused an additional and substantial change, the history of many moves of school and housing with the mother, gives no confidence there would be physical stability in the child’s life with the mother. Similarly, any particular vulnerability of the child because of his history of features of Autism Spectrum Disorder and particular educational and social developmental delays are of neutral influence.

25.Associate Professor D gave alarming evidence about the risks for the child of exposure to violence between the mother and her husband, including the risk that as he grows older, he might seek to physically intervene to protect his mother from Mr Morris. 

26.Concerns have also been raised about the father’s parenting capacity but in my view, for the short term the safest course for the child is with the father. The father’s household is stable in that the father and his parents have lived at their current address for many years); that address has not been the site of regular attendances by the authorities. The paternal grandparents are in the main dwelling on the property and have shown themselves to be independent of and at times, able to challenge the behaviour of the father. Therefore the paternal grandparents represent a protective presence for the child.

27.If I was to simply leave the orders of 23 and 30 November 2015 in place, without more, there remains a serious concern, identified by all of the parties in relation to the effect on the child of his sudden and complete separation from his mother. Evidence was given during the trial, for example, of the child asking the father whether the arrangements after 23 November 2015 “were OK” with his mother.

28.The orders proposed by the ICL will allow the child the opportunity to confirm that his mother is well; that he does not need to worry on her behalf; that she loves him and has not simply abandoned him.

29.The task set for the mother by the orders I made call for a very special effort on her part. The best outcome for the child requires the mother do what she can to take the pressure off him. It will mean that when she speaks to the child she will need to disguise the terrible hurt she must feel. The mother has had the most difficult life and in my view she has bravely sought to promote the best interests of her children, including the child. Under very difficult circumstances, for many years she has maintained a real commitment to the child and I anticipate that she will interact with him with that same commitment in mind. Under the ICL’s proposals, there will be supervision to safeguard against her being unable to reassure the child.

30.The proposed orders will also put in place a counselling relationship for the child.

Conclusion

31.Until final orders are made on the delivery of judgment in these proceedings, I am satisfied that the orders made will be in the child’s best interests.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 8 December 2015

Associate: 

Date:  8 December 2015

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

File No (P)SYC745/2009

BETWEEN

[Ms Morris]	(Applicant)
AND
Rafton Family Lawyers DX 8290 PARRAMATTA	[Mr Somers]	(Respondent)
AND
Legal Aid NSW Sydney Central Family Law DX 5 SYDNEY	Independent Children's Lawyer

ORDER

3 December 2015

PREPARED IN THE REGISTRY

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   File No. (P)SYC745/2009

BETWEEN

[MS MORRIS]   (Applicant)

AND

[MR SOMERS]  (Respondent)

AND

INDEPENDENT CHILDREN'S LAWYER

3 December 2015
Before The Honourable Justice LOUGHNAN

IT IS ORDERED THAT:

1.Orders are made in the terms of paragraphs 1 to 13 under the heading Interim Orders in the document titled “Orders Proposed By ICL” (Exhibit 20 dated 3 December 2015), as set out hereunder:

1.That, until further Order of this Court, the child, [B], born … 2004, live with the father.

2.      That, until further Order of this Court, [the child] is to spend supervised time with the mother as follows:

a.The time is to be supervised by Connecting Families;

b.The time is to occur on one occasion prior to Christmas Day 2015 for a period of 2 hours;

c.The father is to pay the cost of supervision on the occasion referred to in Order 2(b);

d.The Court NOTES that the father agrees to [the child] spending time with his mother after Christmas 2015, on one occasion each calendar month for a period of 2 hours, supervised by Connecting Families, and agrees to pay the cost of such supervision, provided that there are no significant concerns reported by the supervisor after the time spent in December 2015.  

3.      That the mother be at liberty to forward letters, cards and gifts to [the child] by mail to the father’s home address.

4.      That the father ensure that any letters, cards or gifts received for [the child] from the mother are passed on to [the child] provided that the father considers them to be appropriate. 

5.      That the father forthwith contact [Dr C], Psychologist, or such other therapist recommended by the Independent Children’s Lawyer, and make the earliest available appointment with [Dr C] for counselling to support [the child] in relation to the current parenting arrangements.

6.      That the father forthwith obtain a Mental Health Care Plan for himself and [the child] so as to be entitled to the Medicare rebate in respect of [Dr C’s] fees.

7.      That the father be responsible for payment of [Dr C’s] fees, subject to any Medicare rebate.

8.       That the father ensure that [the child] attends counselling with [Dr C] as requested by her.

9.      That the father attend any counselling sessions with [the child] (or alone) as requested by [Dr C].

10.    That the father follow all reasonable directions made by [Dr C] for the purposes of assisting and supporting [the child].

11.    That the Independent Children’s Lawyer have leave to provide to [Dr C]:

a.A sealed copy of these Interim Orders.

b.A copy of [A/Prof D’s] reports dated 29 January 2010, 11 June 2013 and 18 November 2015.

12.    That the counselling conducted by [Dr C] pursuant to these Orders shall be confidential and unreportable, expect that the Independent Children’s Lawyer may have discussions with [Dr C] from time to time in relation to the progress of counselling and any recommendations [Dr C] may have.

13.    The Court NOTES that [Dr C] may communicate with the mother if [Dr C] considers it beneficial to her [the child’s] treatment.    

2.Until further order the mother be restrained from attending at any school which the child, [B] is enrolled.

3.Otherwise judgment is reserved.

By the Court

The Honourable Justice Loughnan