Myles and Salzer
[2009] FMCAfam 890
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MYLES & SALZER | [2009] FMCAfam 890 |
| FAMILY LAW – Spending time – mental health issues. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC |
| Applicant: | MR MYLES |
| Respondent: | MS SALZER |
| File Number: | ADC 2739 of 2008 |
| Judgment of: | Cole FM |
| Hearing date: | 12 August 2009 |
| Date of Last Submission: | 12 August 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eid |
| Solicitors for the Applicant: | Legal Services Commission of SA |
| Counsel for the Respondent: | Mr Tredrea |
| Solicitors for the Respondent: | Graeme D Hemsley Barrister & Solicitor |
ORDERS BY CONSENT:
The mother have the sole parental responsibility for the child [X] born [in] 2006.
The said child live with the mother.
AND FURTHER ORDERS:
The father spend time with the child as follows:
(a)By telephone for a period not exceeding ten minutes on Tuesday and Thursday of each week, with the father to telephone the child on a number provided by the mother between the hours of 6.00pm and 6.15pm;
(b)Between the hours of 9.00am and 1.00pm each alternate Saturday with handovers to occur at the [H] Children's Contact Centre or such other place as is agreed between the parties;
(c)For two hours on the child’s birthday at such times as is agreed between the parties;
(d)For three hours on Christmas Day at such time as is agreed between the parties;
The father’s time with the child pursuant to paragraphs 3(b), (c) and (d) be subject to supervision by Mr S or in the event of his being unavailable, by Mr P (the mother’s brothers) or such other supervisor as is agreed between the parties, until 16 August 2011.
In the event of the father suffering a relapse of the paranoid schizophrenia, the father’s time with the child be suspended pending receipt of a psychiatric report identifying the nature of the relapse, the treatment prescribed, the father’s prognosis, and confirming that the father is in a position to resume supervised time with the child.
The parties take all such steps and do all such actions as are reasonably necessary to ensure that the collection and delivery of the child occurs with the assistance of the [H] Children's Contact Centre, unless otherwise agreed between the parties.
In the event that the supervisors are not available and agreement cannot be reached in respect of an alternate supervisor, the parties:
(a)take such steps as are necessary to seek to re-enrol with the [H] Children's Contact Centre to enable supervised time to resume there, and
(b)there be liberty to the parties to apply for the appointment of an alternate supervisor.
The Application filed by the father on 9 July 2008 and the Response filed by the mother on 8 August 2008 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Myles & Salzer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2739 of 2008
| MR MYLES |
Applicant
And
| MS SALZER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter concerns the amount of time the applicant father should spend with the parties’ daughter [X] who was born [in] 2006. [X] will have turned three some four days after this trial was completed.
The main issue when considering what time the father should spend with his daughter is the father’s mental health. Mr Myles was diagnosed with paranoid schizophrenia in 2002 and has been attempting to manage the illness since that time.
Background
The applicant Mr Myles was born [in] 1981 and will be aged 28 this year. The respondent Ms Salzer was born [in] 1981 and is aged 28.
The parties commenced cohabiting in or about January 2005 and separated on or about 3 October 2007.
There is one child of the relationship, namely [X] who resides with the mother who lives with the maternal grandmother.
The applicant father has been having supervised time with [X] at the [H] Children's Contact Centre.
The applicant is in receipt of a disability pension and is looking for some work to supplement this income.
The respondent is engaged with home duties and is not currently working.
Matters agreed
At commencement of the hearing of this matter Counsel for the applicant father advised me that:
·It is agreed that there be an order that the mother have the sole parental responsibility for [X].
·The child live with her mother.
·The child spend time with the father.
·The handover to enable the child to spend time with the father occur through the [H] Children's Contact Centre.
·In the event of the father suffering a relapse in respect of his mental health, a psychiatric report is to be obtained. However, the parties differ as to whether a relapse constitutes a suspension of time or a resumption of supervised time.
Matters not agreed
The parties could not agree on whether the father's time should continue to be supervised and could not agree that in the event of the father having a relapse whether the resumption of time should be supervised.
There is also no agreement as to what time should be spent between the father and his daughter on her birthday, Christmas day, or telephone communication.
History
In view of the matters that have been agreed, the main focus when examining the history of this matter was to look at the father's attempts to manage his illness and what had occurred post separation.
It appears to be common ground that the parties separated on 3 October 2007. On or about that date the father assaulted the mother, was charged with assault, subsequently pleaded guilty and was placed on a bond to be of good behaviour for nine months.
The mother and [X] moved to live with the maternal grandmother.
From October to December 2007 the father saw the child on a few occasions such time being supervised by the mother.
In October 2007 the father presented at the [omitted] Hospital in a state of anxiety and obsessional disorder having failed to take his medication for his schizophrenic condition.
On 7 February 2008 the parties attended a mediation conference with the Legal Services Commission and were able to sign a heads of agreement.
On 13 March 2008 the father again presented at the [omitted] Hospital after having been detained by police after being found wandering naked along [omitted] Road in an apparently psychotic state.
On 5 May 2008 the father was admitted to a locked psychiatric ward at the [M] Centre with paranoid delusions. On 13 May 2008 the father was transferred to [ward omitted] at the [omitted] Hospital as a result of a late psychotic relapse. He was discharged on 20 May 2008.
On 30 May 2008 the assault charge was resolved as referred to above.
On 9 July 2008 the father filed his initiating application and on
23 October 2008 the father completed an anger management course.
On 15 November 2008 the father completed a Kids Are First program.
On 18 March 2009 the father was admitted to the [B] clinic. He was released on 2 April 2009.
On 16 April 2009 the father was admitted to the [omitted] Hospital. He was released from the [omitted] Hospital on 6 May 2009.
Psychiatric reports were obtained during the course of this matter from amongst other people, Dr M dated 17 June 2008, Dr C dated 29 August 2008 and Dr R dated 8 July 2009. These will be referred to later in the course of these reasons.
In addition, a Family Report was obtained from Mr Stewart Bruinsma in May and again in June of 2009.
The evidence
The applicant father relied on his Form 1 Application filed on 9 July 2008, his Affidavit filed on 9 July 2009, the Affidavit of Dr R, and the Reports provided by Mr Stewart Bruinsma.
The respondent mother relied on her Amended Response filed on
13 July 2009, her Trial Affidavit filed on 13 of July 2009, the Affidavit and evidence of her brother Mr S, and the reports of Mr Stewart Bruinsma dated 13 May and 10 June 2009.
Both parties gave evidence and were subject to cross-examination.
Mr Bruinsma also gave evidence and was subject to cross-examination as was Dr R.
The Law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
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 60CC sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The children’s best interests
I will turn now to the matters set out in s.60CC of the Act which must be considered when determining what is in the best interests of the child.
Primary considerations
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents
The parties agreed that the father should have time with the child. There therefore does not appear to be any dispute that the child will benefit from having a meaningful relationship with both parents in appropriate circumstances.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Whether the child will be safe having regard to Mr Myles’ mental health problems is the issue here.
Whilst there is an allegation of family violence which was admitted by the father who entered into a good behaviour bond, there has been no suggestion of any inter spousal violence subsequent to the date of separation.
There was an incident prior to the father's admission in March 2009 which is admitted. This involved a dispute with his neighbour and his throwing a rock and breaking a window. The father’s evidence is that issue has now been resolved and that he and the neighbour (who has a similar illness) have resolved their differences and have a good relationship.
Father’s mental health
Whilst the issue of violence was rightly raised by the mother, it was not pressed at trial. Rather, the issue was the father’s paranoid schizophrenia and the risks to the child presented by this condition.
It is fair to say that it is implicit in the submissions of both parties that should the father have a relapse, then the child may be at some risk.
The trial commenced with evidence being received from Dr R, the psychiatry registrar with the [W] community treatment team attached to the [B] Clinic. Her evidence was contained in her report dated
8 July 2009. Of note was her advice that:
·Mr Myles has a diagnosis of paranoid schizophrenia.
·He has been inconsistent to follow up since November 2008 and did not keep his appointment with Dr R on 3 March and 11 March 2009.
·She saw him for the first time on 18 March 2009 when he presented to the [B] Clinic with a relapse of his mental illness.
·He was detained at the [omitted] Hospital for treatment.
·His mental status responded to an increased dose of medication while he was an inpatient and he was subsequently discharged on 2 April 2009.
·He was readmitted to hospital on 16 April 2009 with worsening of his psychotic symptoms.
·His medication was changed to Amilsulpride to which he responded well.
·He was discharged from hospital on 6 May 2009.
·At the date of the hearing she had seen him four times since his discharge, the last appointment being on 24 July 2009.
·He did not show any evidence of psychotic or mood symptoms. His insight was good and he was complying with his medication. He has been generally compliant since his discharge in May 2009.
In the penultimate paragraph of her Report Dr R states that:
In my capacity I understand that his mental illness can have a relapsing and remitting course and to achieve long-term favourable prognosis, it is important for Mr Myles to have regular follow up at the clinic and to comply with these medications.
This was explored in the course of her evidence that she provided to the court. She confirmed that:
·It was not possible to consider providing a favourable prognosis for Mr Myles until he had been compliant with his medication and appointments for at least six months.
·She was unable to say when the father would be okay.
·She was able to note that he has complied with his medication and follow-ups since 6 May 2009.
·She could not say whether or not he would be compliant in the future.
·Whilst it is not a risk factor, it is not of assistance that the father is living on his own without support.
·It would assist if he had family support however this was not available in South Australia (his family being in New South Wales).
·His long-term prognosis depends on him not abusing alcohol or other drugs.
·He still requires the supervision of a psychiatrist and will continue to do so.
·In view of the nature of the illness of paranoid schizophrenia, the only way people with this illness can manage is to stay on their medication.
·It is possible and is usual for a mental health plan to be put in place with the patient's general practitioner. She did not know that one was in place for Mr Myles.
·Whilst she agreed that there can be early warning signs such as poor sleep for some people prior to a relapse, she could not say how able the father was to self-report about any oncoming relapse.
·A relapse can be triggered by stress as well as non-compliance with the medication regime.
Mr Bruinsma, the family report author, was present in court and heard the evidence of Dr R. He also noted that the father had:
·Limited social support
·Limited family support in that his family was located interstate.
He confirmed that anyone dealing with mental health issues does better with support. He also confirmed that there were less formal pathways that Mr Myles could access including non-government organisations who may be able to assist him.
When considering whether Mr Myles would be able to tell if a relapse was imminent, he noted that people with paranoid schizophrenia tend to minimise their symptoms.
At the time that he concluded his second report he was under the impression that Mr Myles had resolved his mental health issues.
He confirmed that the issue of whether or not Mr Myles’ time with his daughter should be supervised or not was very much a line call.
When it was put to him again following the evidence of Dr R he recommended that Mr Myles’ time with his daughter be suspended because the evidence was:
·It was not possible to provide a prognosis until Mr Myles had been compliant for at least six months.
·It was not established that a mental health plan was in place for Mr Myles.
·It was not established that he was involved in any community organisation that was able to assist him
·There was no evidence to suggest that Mr Myles was accessing these services.
·He did not have the support of the extended family, it being established that they were residing in New South Wales.
This was later confirmed when Mr Myles gave evidence.
It is notable that Mr Bruinsma indicated that he would be more comfortable if he could see that:
·There was an established history of compliance with medication by the father.
·It could be shown that he had access to services available to assist him.
·It could be shown that he had attempted to integrate himself with these services.
·It could be shown that he had made attempts to integrate himself with the child.
Unfortunately, that was not currently in place. It is therefore not possible to find that at this stage there is minimal likelihood of
Mr Myles having a relapse. Should he have a relapse, there is no assurance that the child will be adequately protected from the risk of physical or psychological abuse.
It is acknowledged that Mr Myles is making every effort to get his life back on track. The difficulty is however that over the past two years there have been a number of relapses of a significant nature. Counsel for the mother in closing pointed to the series of favourable psychiatric reports received by Mr Myles subsequent to his discharge and prior to his next relapse.
These reports are annexed to the affidavit of Mr Myles. It is notable that:
·On 7 March 2008 a report was supplied by Dr G. Dr G stated, amongst other things:
In summary his illness appeared very well controlled.
He went on to say however that:
Given his current mental state I would have no concern with
Mr Myles having at least supervised access with his daughter.
On 13 March 2008 it is common ground that Mr Myles presented at [omitted] Hospital after being detained by police whilst wandering naked along [omitted] Road in an apparently psychotic state.
On 17 June 2008 a further Report was obtained from Dr M and Mr W which stated, amongst other things:
Mr Myles is currently well with no overt signs of psychosis. He presents as a friendly and articulate man with an affectionate bond with his child and a clear desire to play an active role in her life. He currently demonstrates good insight and judgment into all matters he puts his mind to…
He went on to say:
Given Mr Myles good insight into his illness, his willing compliance with medication and good recovery thus far, I would give him a good prognosis. If his symptoms remain absent for another five months as I would expect, he would be in clinical remission.
A period of some nine months passed and yet on 18 March 2009 the father presented at [B] Clinic in a paranoid and delusional state. He had been non-compliant with his medication and was discharged from hospital on 2 April 2009. He was subsequently re-admitted some fourteen days later being finally discharged on 6 May 2009.
Since separation, Mr Myles has had a number of relapses. On each occasion following his discharge from hospital, he has been provided with reports that have been positive about his prognosis. The evidence of Mr Bruinsma is that following his conversation with Dr T who was the psychiatrist responsible for Mr Myles’ discharge from hospital on
6 May 2009, he changed the conclusion on his report to the conclusions shown on the report published in June 2009 that Mr Myles should have unsupervised time with the child.
I have referred previously however to his change of opinion following his being present during the evidence of Dr R and his recommendation that the time now be supervised.
At present there is no established history of compliance with the medication by the father. Furthermore, his evidence is that on each occasion he had a relapse in 2009, he had chosen to reduce his medication himself. He has been unable to self-report on the forthcoming relapse and as a consequence, has been hospitalised for significant periods of time.
It is of note that his evidence in paragraph 42 of his Affidavit that:
It should also be noted that whenever I have been hospitalised it has always been for a short period of time……
This does not address the fact that in 2008 and 2009 he appears to have been hospitalised in respect of his illness on five occasions.
This corroborates the suggestion of Dr R and Mr Bruinsma that there can be a tendency for people with this condition to minimise their symptoms.
The track record of his management of his illness is not good but it would be of assistance to point to some other support systems for him but there is no evidence to show that he has access to services that are available to assist him or that he has made any attempt to access those services.
Mr Myles did say that in the last month he has resumed attending Alcoholics Anonymous and has been to ten meetings. This is a positive start, however more needs to be done.
The evidence is it is not possible to provide any positive prognosis for Mr Myles at this stage. Since his discharge in May he has been compliant with medication and has been attending his appointments. I note, however, he has not been able to date to show that there are any other support systems in place that will assist him to avoid a relapse. Should a relapse occur, then I cannot be confident that the child will be protected from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence as it does not appear possible to confidently predict what Mr Myles would do should a relapse occur.
Mr Bruinsma made it clear that if Mr Myles is managing his condition then he should spend time with his daughter unsupervised. I cannot, however, on the evidence before me, make that finding.
I have had regard in making this decision to the additional considerations set out in s.60CC(3).
In respect to those considerations, I say as follows:
Section 60CC(3)(a) - any views expressed by the child
[X] is too young to have her views considered.
Section 60CC(3)(b) - the nature of the relationship of the child with:
(a) each of the child’s parents, and
(b) other persons (including any grandparent or other relative of the child)
I have noted the reports of the Children’s Contact Centre that were provided to the Court.
It is apparent from those Reports that Mr Myles is starting to engage with his daughter and that his time with her has been progressing well.
There does not appear to be any dispute about the nature of the relationship between [X] and her mother and maternal grandmother, the focus being on Mr Myles’ health and his ability to interact with his daughter.
Section 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing a close relationship between the child and the parent
I have had regard to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. This was not an issue that was raised against Mr Myles.
I do however at this point note the evidence of the mother that when [X] is old enough, (and she mentioned the age of five), then she would be in a position to let the mother know if she wanted to see her father and her time with her father should be in accordance with her wishes.
It is appropriate in this judgment to make it very clear that the parents in this matter have a responsibility to ensure that the child continues to have a close and continuing relationship with the other parent. It is not a matter for a child and it is particularly not a matter for a five year old child to make those decisions.
The mother has a responsibility to ensure as the parent with whom the child lives, that she has, under appropriate circumstances, a close and continuing relationship with her father. She cannot abdicate that responsibility.
It would be extremely disappointing if this matter came back before this Court when [X] reaches the age of five or six on the issue of whether or not [X] wished to see her father. That is clearly a matter for [X]’s parents and they are responsible, and no-one else, for ensuring that the time [X] spends with the other parent is in the appropriate circumstances as enjoyable as possible.
Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) either of his or her parents; or
(b) any other child, or other person
The orders I am making are unlikely to have any major changes in the child’s circumstances. The time Mr Myles gets to spend with [X] will be extended by two hours per fortnight, however, that time will continue to be supervised. The time will be subject to the supervision of the mother’s brother, Mr S. The parties will therefore have the benefit of spending that time away from the Children’s Contact Centre.
Section 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This was not an issue that was raised by either party. Both parties reside in Adelaide and there did not appear to be any obstacles in the way of the child spending time with and communicating with either parent.
SECTION 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The mother had some criticisms of Mr Myles’ parenting skills as reported by the Children’s Contact Centre being that he did not know how to distract her when distressed and he should not have allowed her to ride on the slippery dip when he was not in a position to break her fall should she slip. It needs to be noted that Mr Myles has had limited time with his daughter and that his time for the immediate future will also be limited and supervised. Mr Myles’ parenting skills will no doubt improve over time and he can no doubt learn from the comments of the mother. He is to be commended for attending the Kids Are First program and it is hoped that he will continue to take advantage of the programs that are available through the Community Centres.
There has already been considerable discussion of the mental health issues presented by Mr Myles. Following that discussion, the conclusion I reached was that Mr Myles’ time with his daughter would need to be supervised for the immediate future.
It is the mother’s suggestion that that time be supervised until such time as [X] reaches the age of five where she will be able to have some capacity to fend for herself and seek assistance if required. I am inclined to accept that proposal subject to the safeguards set out in the orders. It is common ground the Children’s Contact Service cannot continue to supervise the contact. There is no evidence to suggest that they would have the capacity for the next three years.
The mother has an alternative put forward namely her brother, Mr S, a customer services officer who lives in [N] in Adelaide. Mr S is a man who has been residing with his partner for some thirteen years and who has a little girl some eight months old. He has read the brochure regarding supervision of children’s contact and has been briefed by Counsel for the mother. His evidence was that:
·He was prepared to supervise the father’s time with [X] for four hours each fortnight.
·He did not have a problem in his relationship with the father (and this concurred with the father’s evidence).
·He feels he can talk with the father about his supervision time.
·He had no problem with Mr Myles coming to his home.
·He had an older brother Mr P.
·He had spoken with Mr P about sharing the supervision duties. Mr P also resides at [N].
·He did not have a problem with travelling, had a car and a motor vehicle driver’s licence, and was able to be flexible in the times. He lives some eight to ten kilometres from Mr Myles’ residence. He lives some six kilometres from his sister’s residence.
·His brother Mr P was also prepared to assist in the supervision of Mr Myles’ time (and it should be noted that Mr Myles’ evidence was, whilst he had some trepidation of the brother’s perception of his separation from the mother, he did not have any fundamental problem with either Mr S or Mr P).
It is unfortunate that Mr P was unable to give evidence or at least file an Affidavit. Nevertheless, in view of the need for supervision and in view of the fact that Mr Myles did not put anyone else forward, and in view of the evidence of Mr S, I am prepared to accept that Mr S and, in the event of his being unavailable, Mr P as supervisors of Mr Myles’ time with his daughter.
The role of supervisor taken on by the mother’s brothers could be quite burdensome. I am therefore concerned to ensure that all other concerns being met, that in the event that either of them were not able to do the job and there was no agreement on a replacement that the father’s time with [X] be able to continue. I have therefore included an order that requires the parties to seek the assistance of the [H] Children's Contact Centre pending agreement being reached or further order of this Court.
It is notable under this sub-section that neither party took issue with the role of the maternal grandmother in this matter. The maternal grandmother was present in Court during the trial to provide support for her daughter. She did not give nor was she required to give evidence in this matter.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child and either of the child’s parents
I have already commented on the fact that [X] is a young girl who [was born in] 2006. I have also commented on the fact that the parties have reached basic agreement on most matters save and except the terms and conditions under which Mr Myles should spend time with his daughter.
I have made findings in respect of that and do not propose to comment further.
Section 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
I have commented on the criticisms that the mother had of Mr Myles. Those criticisms are addressed by the terms under which Mr Myles will continue to spend time with his daughter.
I have also commented on the mother’s evidence and her suggestion that when [X] commences primary school she will be in a position to express her wishes as to whether or not she wishes to see her father. I will say once again that any suggestion that a five year old should be able to dictate when and how she should spend time with either parent is unacceptable. It is for the parents to take that responsibility and to ensure that time is as beneficial to their daughter as is possible.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
I have addressed this in considering the need to protect the child from the risk of family violence and from physical or psychological abuse. This issue in this matter revolves around Mr Myles’ mental health issues and any incidents arising from a relapse.
Section 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family
There is no current order however it is notable that Mr Myles is on a good behaviour bond.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
An order for ongoing supervised time subject to Mr Myles’ health issues is not the best solution. Unfortunately, there are no other options.
It is hopeful that once Mr Myles can demonstrate a suitable track record of compliance and there is evidence to demonstrate that his mental issues are being appropriately supported by interaction with community organisations and an appropriate mental health plan, that the parties can then move on. In the meantime however, I must have regard to the best interests of [X] and in the circumstances have no option other than to order supervised time.
Conclusion
[X] is a young child who has the benefit of being loved by her parents. It is unfortunate that her father has had some serious mental health issues and it is hoped that those issues can be addressed by both parties for the sake of [X].
What has sought to be done with this matter is to set up a structure that will enable the parties to move forward. It remains open to the parties to negotiate the next step, however, it is unlikely that that step will be taken for some time.
Mr Myles now needs to take positive steps to manage his health so that he can be in a position to enjoy a close and continuing relationship with his daughter. It is noted that he has started on that path by attending Alcoholics Anonymous and being compliant for three months but more needs to be done.
He needs to present with an established history of managing his illness including taking steps to set up appropriate support networks. Whilst the evidence would suggest that there needs to be a record of compliance for at least six months, it is notable that the relapse in 2009 happened some nine months after his recovery in 2008.
The mother has said that she would agree to the cessation of the supervision when [X] is five. No doubt if things do not improve a further application will be made. In the alternative, if things do improve, it is open to the parties to vary the arrangements.
It is hoped that in an environment where [X] has the support of both parents and her extended family, common ground can be found that will enable her to thrive.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Cole FM
Associate: Ms H Priest
Date: 28 August 2009
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