Nathan and Merrill (No 2)

[2018] FamCA 995

FAMILY COURT OF AUSTRALIA

NATHAN & MERRILL (NO 2) [2018] FamCA 995

FAMILY LAW – CHILDREN – Interim proceedings – Whether the children should spend time with the mother – whether the children should spend supervised time with the mother – Where there is a history of family violence – Where the mother was observed by the family consultant to be effectively a “benign stranger” to the children –  Risk-averse approach taken

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel v Marvel [2010] FamCAFC 101

APPLICANT: Ms Nathan

RESPONDENT: Mr Merrill

INDEPENDENT CHILDREN’S LAWYER: Silkwoods

FILE NUMBER: ADC 3121 of 2015

DATE DELIVERED: 27 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Andrew Hill and Co

COUNSEL FOR THE RESPONDENT: Mr Britton

SOLICITOR FOR THE RESPONDENT: Weatherley & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Olsson
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Silkwoods

Orders

(1)That the interim orders sought by the mother in her Response filed 28 November 2017 are dismissed.

(2)That the proceedings be placed in the list of matters awaiting a First Day Hearing.

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 Nathan & Merrill (No 2) 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 ADELAIDE

FILE NUMBER: ADC 3121 of 2015

Ms Nathan

Applicant

And

Mr Merrill

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By her Response filed 28 November 2017, Ms Nathan (“the mother”) seeks interim orders that she and Mr Merrill (“the father”) have equal shared parental responsibility for X born in 2014 (“X”) and Y born in 2016 (“Y”) (collectively “the children”), that until final order the children live with the father and that she spend supervised time with the children at a children’s contact centre.

2. The father strongly opposes the mother’s orders and contends that she should not communicate with or come into physical contact with the children.

3. The Independent Children’s Lawyer (“ICL”) does not support the children having physical contact with the mother but is less opposed to the mother communicating with the children by the provision of age appropriate gifts, cards and letters.

4. By reference to the recommendations contained in a Family Report dated 13 June 2018, the family consultant tentatively supported the mother resuming a relationship with the children provided that her time would be supervised and structured.

5. The complexity of the matter was such that the family consultant considered the parties and the children should attend upon a therapist who could provide a report to the Court “about the re-introduction of the children to their mother…”

6. By implication, the family consultant did not consider that any orders should be made in favour of the children spending time with their mother until the further advice had been obtained and considered.

7. The ICL instructed Ms B, psychologist, to undertake the further assessment and to comment on how the recommendations of the family consultant could or should be implemented.  Her report dated 18 October 2018 was considered by the Court on 19 November 2018 whereupon judgment was reserved.

BACKGROUND

1. The parties commenced a relationship in 2013 and separated in May 2015.  Their relationship strongly featured substance and alcohol abuse and was often marred by domestic violence.

2. X was the subject of action by the Department of Child Protection (“DCP”) and was removed from the parties’ care and placed with the paternal grandmother.

3. It is alleged that the mother had dropped X on her head from shoulder height during an argument between the parties.

4. The mother was the subject of an intervention order on 28 June 2015.  The father and X were protected persons.

5. X remained with the paternal grandmother for nine months before being reunited with the father.  It appears that he had satisfied DCP that he was drug-free and able to protect the child.

6. Proceedings in the Federal Circuit Court were commenced on 21 August 2015 and on 13 May 2016 orders were made that X live with the father and spend time with the mother as may be agreed.

7. In 2017 the mother pleaded guilty to Aggravated Cause Harm Against A Child and was sentenced to a suspended period of imprisonment of one year and nine months with a non-parole period of 10 months.

8. A cautious approach was adopted in respect of the resumption of any time between the children and their mother given her poor mental health, drug and alcohol abuse and the concern that the children were at significant risk of physical harm.

9. The involvement of DCP focused on Y given the mother’s continued drug and alcohol use, unstable mental health and her uncertain accommodation.

10. Y was removed from the mother’s care on 1 October 2016 following the mother’s advice to the police that she was threatening to throw Y off the balcony.

11. Both parties have a long offender history and the various SAPOL reports suggest that the father was the perpetrator of ongoing family violence.

INTERIM PROCEEDINGS

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not yet been tested. That does not mean that the Court is not able to make an appropriate interim order until and unless the evidence has been tested. At an interim hearing the Court should generally be risk-averse and cautious.

3. The mother’s application must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.

4. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration. In order to determine what is in the children’s best interests the Court must consider the provisions of s 60CC as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

PARENTING CONSIDERATIONS

1. The family consultant observed the children engaging with the mother.  Her conduct was appropriate and she went to some effort to engage with the children in what was demonstrably a difficult and artificial setting.

2. The impression of the family consultant was that the children considered their mother to be a “benign stranger”.  There was no obvious stress on the part of the children and nothing was said or observed to suggest the interaction “triggered a traumatic memory”.

3. Consistent with the father’s primary care, the family consultant observed a warm, close emotional attachment.  She considered the father to demonstrate a competent level of parenting.

4. The family consultant sought information from Mr C, psychologist, who had prepared a report for use in her criminal proceedings.  Mr C commented on the mother’s prospects of rehabilitation in the following terms:-

   With the assistance of a supervised structured rehabilitation programme I believe that [the mother’s] prognosis to cease offending is fair…  Her cannabis and alcohol abuse represents a maladaptive coping strategy for her mental health problems.  I believe that with optimal treatment she will be able to develop alternative coping strategies and her propensity to offend will significantly decrease.

5. Mr C then listed 13 recommendations for a “supervised structured rehabilitation program for the mother including a DASSA referral”.

6. The family consultant correctly identified that the best interests of the children should focus on whether the children would benefit from a resumption of a relationship with the mother now, or whether it is a decision that should be delayed until the children form their own view.

7. At the time of the assessment the father’s social media activities were at their most damaging.  It was a factor that the family consultant brought to account that his “demonising of the mother on social media” may well have a serious adverse impact on the children in circumstances where at present they do not appear to be affected by any traumatic memory.

8. The family consultant formed the view that the children’s development would be enhanced if they were presented with a more benign view of their mother namely, that she loves them, generally intends no harm, but was struggling with mental health issues as a result of her own dysfunctional childhood.

9. The family consultant recommended that a therapist should be engaged to develop a plan for the children to be introduced to their mother and for a relationship to be supported.

10. As discussed, the Court had the benefit of Ms B’s report dated 18 October 2018. 

11. Ms B considered that many of the factors that caused the mother to suffer from poor mental health with the resultant adverse consequences of drug and alcohol abuse to be largely unresolved.  At [35] of her report she states:-

    [The mother] struggled to consider [the children’s] experiences in substantial and authentic way; the over-riding sense was one of psychological distance from her actions, which mirrored the sense provided when she spoke of her childhood experiences.  Until [the mother] develops the capacity to identify and process her own feelings in relation to her own experiences, it will remain difficult for her to meaningfully appreciate her children’s experiences of abuse and trauma at her hands.

12. Ms B considered that the mother should not spend further time with the children until she is able to “demonstrate full acknowledgment and insight into her behaviour and a commitment to furthering her insight into the origins of her parenting difficulties via sustained engagement over at least a 12 month period with a skilled attachment-based therapist…”.

13. It would seem that Ms B considered that at present the advantage to the children in resuming the relationship with the mother could only be of benefit if the mother could demonstrate that there are no ongoing issues with respect to her sobriety and that she has gained “a significant capacity to be able to understand the children’s perspective”.

14. The recommendation is that the mother should engage in her DBT program for at least 12 months as recommended by her psychologist.

15. The ICL does not support a resumption of time between the mother and the children until the Court can be satisfied that the mother has developed a level of insight into her conduct and behaviour and how it resulted in a total failure to protect the children.

16. No evidence was presented from either the family consultant or Ms B as to whether it would be of benefit to the children for the mother to forward gifts and written communication. 

17. The family consultant considered that a resumption of the mother’s relationship with the children providing it occurred in a safe setting would be in their best interests.  Ms B has adopted a more cautious approach and it is her evaluation of the mother’s current functioning that supports her contention that the children may well be at emotional or psychological risk if the mother is re-introduced into their lives prematurely.

18. I must take a risk-averse approach and as such the orders sought by the mother must be supported by evidence.

19. Whilst the mother has not presented a sufficient basis for a resumption of time with the children at this stage, I consider that a possible pathway has been identified by the family consultant and Ms B.

20. I propose to dismiss the mother’s interim proceedings, but will place the matter in the trial list.

21. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 November 2018.

Associate: 

Date:  27 November 2018