Newett & Newett and Anor
[2020] FamCA 470
•12 June 2020
FAMILY COURT OF AUSTRALIA
| NEWETT & NEWETT AND ANOR | [2020] FamCA 470 |
| FAMILY LAW – CHILDREN – Interim – whether the children should spend unsupervised time with the mother pending a final hearing – where the Independent Children’s Lawyer was prepared to consider unsupervised time once certain conditions, statements and confirmations from the mother’s treating Psychiatrist were provided – where the Court is not able to essentially abdicate to the mother’s Psychiatrist the role of determination of risk entirely – where neither the father nor the medical experts opine that the mother’s fixed views about the father have transitioned in any way to place the children at any risk of physical harm in the mother’s care – where the mother has maintained a therapeutic relationship with a treating Psychiatrist – where supervised visits have been positive and the children express a wish for more time unsupervised with the mother – orders made for the children to spend unsupervised day time with the mother until a final hearing in three months |
| Family Law Act 1975 (Cth) s 60CC |
| Banks & Banks (2015) FLC 93-637 |
| APPLICANT: | Ms Newett |
| FIRST RESPONDENT: | Mr Newett |
| SECOND RESPONDENT: | Ms Adlam |
| FILE NUMBER: | BRC | 2179 | of | 2018 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 8 June 2020 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE FIRST RESPONDENT: | Damien Greer Lawyers |
| THE SECOND RESPONDENT: | Self-represented |
| INDEPENDENT CHILDREN’S LAWYER: | Mr D Carter, Carter Farquar Mediation & Family Law |
Orders
That by 4.00pm on 15 June 2020 the Independent Children’s Lawyer shall circulate to the parties a minute of interim orders which he contends are in line with the Reasons for Judgment delivered 12 June 2020.
That if the parties are unable to agree by 4.00pm on 16 June 2020 on the terms of the interim order, then the proceedings will be adjourned to 9.30am on 17 June 2020 in the Family Court of Australia at Brisbane, for pronouncement of interim orders.
That the parties have leave to appear by telephone on 17 June 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:
(a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 17 June 2020;
(b)They shall each then enter the pass code … (followed by #); and
(c)Hold the line until the Court is ready to connect and proceed with the matter.
That the Case Management Hearing date of 27 July 2020 be adjourned to 9.30am on 19 August 2020 in the Family Court of Australia at Brisbane.
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 Newett & Newett 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 BRISBANE |
FILE NUMBER: BRC 2179 of 2018
| Ms Newett |
Applicant
And
| Mr Newett |
First Respondent
And
| Ms Adlam |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Three young girls aged nine, seven and five have been spending supervised time with the Applicant mother since March 2019 when, as a result of an Order changing the residence of the children to the Respondent father, a Judge of the Federal Circuit Court of Australia on 6 March 2019 ordered such supervision.
Since that time, this case has endured a combination of Court events which have, in short, delayed the finalisation of both the pending property and parenting disputes. The matter has been listed for a final hearing before me commencing 28 September 2020 – regrettably over 15 months after a trial in the Federal Circuit Court of Australia was to have taken place in June 2019.
As I briefly set out, I cannot ignore the effect the procedural pathway has had on the unrepresented, yet articulate, mother, whilst accepting the father has also incurred considerable legal costs and faced the same uncertainties arising from the delay.
The Reasons which I now publish relate to the core issue of whether or not the children should spend unsupervised time in the mother’s care and if so, whether that occur by way of a change of residence (as the mother primarily seeks) or at least regular unsupervised time pending the final hearing.
The maternal grandmother who lives in New South Wales, also unrepresented, additionally seeks unsupervised time over school holidays with her three granddaughters.
The father, ably represented by Mr Richardson (solicitor), says that the current arrangements for supervised time, being two hours supervised at P Contact Centre at Suburb CC, should continue until all the evidence is tested at the final hearing. In the final analysis, the Independent Children’s Lawyer (“ICL”) Mr Damien Carter, on balance, does not support unsupervised time commencing, although as the ICL’s proposed minute for interim orders sets out, he was prepared to consider time moving to unsupervised time once certain conditions, statements and confirmations from the mother’s treating Psychiatrist Dr V were provided. I explained to the parties, for reasons expressed, how the Court was not able, in the exercise of its proper judicial function, to essentially abdicate to the mother’s Psychiatrist the role of determination of risk entirely – without, for example, the Court having the opportunity to review any statements sought under the ICL’s proposed orders 2 and 3.
These Reasons are necessarily truncated and, as identified by authorities such as Banks & Banks (2015) FLC 93-637 deal with the core controversial issue about whether the mother is an unacceptable risk to the children such that no form of unsupervised time should occur. The other reasons why the discussion is brief, is because:
a)I am conscious that this matter is listed for final hearing before in a little over 12 weeks’ time and all the evidence, including that of the medical experts, remains untested. As authority makes clear, in shortened interim hearings, caution must be exercised in making findings of fact – and this is even more the case when I will be asked to conduct a final hearing;
b)but for the tortious litigation journey this case has endured, it would be unusual for a Court to consider significant changes to interim orders so close to a final hearing. In my view however, this is an unusual case;
c)an Order by a Registrar for a s 62G family report was made after the proceedings were transferred to this Court by the Federal Circuit Court of Australia on 13 January 2020. At that time the Judge who had made further interim orders on 12 August 2020 after the trial set for 17 June 2019 did not proceed, recused himself. I am informed that the appointments of the updated family report are likely to take place in the week of 27 July 2020. The first family report by Mr B (who has now retired from practice) arose from interviews on 11 June 2018 – two years ago, and in a much different context. That family report (filed 11 July 2018) raised concerns about both parents, depending on findings of fact made by the Court, but essentially recommended that the three children live primarily with the mother and spend unsupervised regular time with the father. As the report identified (paragraph 8.63), Mr B telephoned the mother before the report was released and he was informed that the mother had engaged with a Psychiatrist after her interview and that she had been diagnosed with ADHD and was prescribed medication. Mr B noted (at 8.64) that the mother’s actions “are entirely consistent with my recommendations”;
d)the parties are clearly keen to read any updated report, but in my view, for the reasons give below, it is not appropriate to wait for the report before considering the change to interim orders; and
e)as all time the mother has spent with the children since February 2019 (when the father withheld the children) has occurred supervised, it was important to consider the notes of supervised visits which I have done – for the period commencing 16 March 2019 to 30 May 2020. The reports are positive about the time the children have spent with the mother; save for a couple of recorded instances the mother’s behaviour has been affectionate and caring; the children continued throughout to engage happily and to seek more time; and routinely found it difficult to leave the mother at the conclusion of the weekly visits.
In discussing some of the evidence and events since the orders of 6 March 2019 below, I do not deal with every s 60CC(3) factor specifically but I have considered them. In circumstances where the best interests of the children remains the paramount consideration, this interim decision brings into shape focus the need to consider:
a)under s 60CC(2)(a), the benefit to the children of having a meaningful relationship with both parents; and
b)under s 60CC(2)(b), the need to protect the children from harm, which must be given greater weight,
all within the statutory objects and principles that require the children’s right (not the parents’ rights) to have regular contact with their parents who are to be involved, ideally, in their parenting.
As always, context is important, especially as, in my view, the history of this ligation cannot be ignored as it is likely to have had an effect on both parents, but particular the unrepresented mother.
Relevant chronology
A succinct contextual history follows:
a)The parties commenced cohabitation in May 2005 and finally separated in January 2018, when the father left the former matrimonial home;
b)The mother asserts, and the father denies, that she was the subject of physical domestic violence at the hands and actions of the father, including an alleged attempted strangulation in November 2017. Furthermore, the mother asserts and the father strenuously denies, the father was controlling, verbally abusive and financially controlling. There seems little doubt that at the time of separation the parties were under financial stress. Subsequently the mortgagee of the former family home has threatened to take possession of the property for arrears of payments. The mother consistently makes claims the father “stole her business”, whatever those words are meant to mean, which he denies;
c)Shortly after separation the father commenced proceedings in the Federal Circuit Court of Australia, seeking parenting orders and property orders. In respect of parenting orders, he proposed the children live with the mother. On 18 April 2018 a Judge of the Federal Circuit Court of Australia ordered essentially that:
i)the parents have equal shared parental responsibility;
ii)the children live with the mother;
iii)the children spend time with the father alternate weekends (Friday to Monday) and after school Monday to before school Wednesday in the off week – mathematically a split of time of nine nights/five nights.
d)In November 2018, the matter was listed for a three day final hearing commencing 17 June 2019. At the time of the listing, a family report AND the report of Dr A had been filed, but no agitation for a variation in the interim parenting arrangements was apparently raised, until the father on 7 February 2019 filed an Application in a Case seeking an immediate change of residence and that the children spend supervised time with the mother. The father relied upon evidence (still untested) by Ms L, a beautician who provided services to the mother, and Ms L’s 27 year old daughter Ms K who had been the assistant for the parties from approximately September 2018 (being some months post separation). As Mr Richardson referred to the evidence of these witnesses, I choose to read their Affidavits. They make highly critical comments about the mother and refer to statements made by her, which broadly the mother has, on oath, denied. Where the truth lies in these statement is a matter for the trial. However, it at least suggests the post separation conflict (despite the Orders made in April 2018) was toxic and, the father says, shaped by the mothers delusion-like statements about him;
e)The Orders of 6 March 2019 changing residence immediately were confronting for the mother. The Reasons for the Orders were published and I have read them. It is clear that the Federal Circuit Court of Australia Judge was concerned about a combination of the assessment by Dr A, the evidence of the father and his witnesses, and considering the trial was to take place in three months’ time (see paragraph 10), her Honour decided to change residence to the father and reduce the children’s time with the mother to supervised time;
f)It is possible that the effect of these Orders upon the mother contributed to her admission on 24 May 2019 to the mental health ward at City T Hospital where she was discharged on 27 May 2019. The reporting Psychiatrist Dr S indicated the mother had suffered an “acute stress reaction” with probable PTSD “due to the past traumatic domestic events” as the mother had documented;
g)The mother had, as an unrepresented litigant, filed an appeal against the Federal Circuit Court of Australia Orders of 6 March 2019, however it was listed on 17 June 2019 but was not dealt with, for the simple and understandable reason that the three day trial was to commence the same day. There was no utility in the appeal and its dismissal meant the grounds of appeal were not considered;
h)On 17 June 2019 the trial was listed to commence for three days (in respect of both parenting and property). However, the trial was adjourned for the reasons explained by the trial Judge in Reasons delivered 12 August 2019. The effect of the adjournment was that the interim parenting orders continued until 12 August 2019 at least. It is worth noting that the pending property proceedings involved applications for the family home occupied by the mother alone, to be sold;
i)On 2 August 2019, with matters still unresolved, the mother was admitted to the mental health ward again. The admission notes suggest she was admitted because “friends’ concerns regarding erratic mental state and paranoia in community”. There is a lack of any evidence currently before the Court to understand the foundation for these concerns, however when she was discharged on 5 August 2019 the assessment was made that her current presentation “is more in line with acute stress disorder, on a background of ADHD and significant psychosocial stressors” however on discharge she had “stable mental state” and there was no finding “of any major mood disorder, any psychotic processes, any significant substance use, or any imminent risk of harm to self or others”.
Importantly, she was encouraged to seek psychiatry follow-up which she agreed to do – and did so, consulting her ongoing treating Psychiatrist Dr V on 19 September 2019 and continuing to do so.
j)She was likely to have been exposed to more stress in the continuing adversarial proceedings when, for Reasons delivered on 12 August 2019, the Federal Circuit Court of Australia trial Judge made no changes to the interim Orders of 6 March 2019, other than to remove the mother’s powers to exercise equal shared parental responsibility (granting the father sole parental responsibility); changed the children’s school and ordered the family home be sold. The mother again, by this time, was unrepresented, yet was able to file and argue successfully an appeal against those Orders after earlier obtaining a stay (with representation) of the Order for the sale of the family home on 30 September 2019;
k)The original Federal Circuit Court of Australia trial Judge recused himself and transferred the proceedings to this Court by Orders made on 13 January 2020; and
l)On 6 April 2020, the Full Court (Tree J) allowed the mother’s appeal; set aside the Orders of 12 August 2019 and remitted the interim applications for re-hearing.
Frankly, unless this Court had elected to expedite the matter to a final hearing, the interim Orders of 6 March 2019 were likely to have remained in place for over two years without review. My decision to list the matter for an interim hearing, supported by the ICL yet opposed by the father, as will become apparent, was in my considered view justified.
The mother’s current mental state
Whilst the cross sectional assessment by Dr A made from interviews of the mother on 16 August 2018 has not been updated, the concerns expressed by him and relied upon by Judge Spelleken for her Orders, are still matters to be considered and do raise concerns.
However, in my view, the Court, in assessing whether the mother presents as an unacceptable risk to the children at this time, if she had unsupervised time with the girls, must also consider as favourable to her improved and perhaps resilient mental state that:
a)she has secured and maintained a therapeutic relationship for nearly nine months now with treating Psychiatrist Dr V. As directed, and in addition to earlier reports dated 30 October 2019 and 30 January 2020, Dr V provided a report dated 26 May 2019 (but clearly meant to be 26 May 2020. Attached to the report is a “second opinion” from Dr W. Whilst suitably cautionary and whilst both point to the difficulties in psychiatry, in establishing whether concerns are based in reality, neither Psychiatrists make an adverse diagnosis;
b)the mother has been prescribed medication by Dr V and is prepared to continue to observe medication recommendations; and
c)even under the enormous pressures which she has been under as the past history since March 2019 reveals, she has maintained weekly visits with the girls and had very positive interactions – exhibiting at times, as required, appropriate parenting techniques.
Against these favourable factors on her functioning, I also consider:
a)the, at times, extremely aggressive and bitter statements and remarks the mother has made about the father to the father; about the solicitors for the father to them and others; about the behaviour of the ICL; about Dr A and other witnesses (detailed in the father’s recent Affidavit);
b)her constant criticisms of Queensland Police and other authorities who she believes has not taken her allegations of family violence perpetrated by the father as truthful or serious – only causing her at times to appear more vitriolic; and
c)the father’s concern, based he says on his complete denials of any actions designed to intimidate, provoke or agitate the mother and past examples of her fixation with him and seeking to prove his wrong doing, that the children will be a risk of psychological harm in the mother’s care unsupervised. To this end, the supervised visit notes reveal two occasions recorded over more than 50 visits where the mother was cautioned by the supervisors for inappropriate comments. Those occasions were particularly 17 August 2019 (a few days after Judge Middleton’s judgment) and 18 April 2020.
Discussion
I have found this a very difficult interim decision. There is no real controversy that:
a)the mother was the primary carer of the children to March 2019;
b)the supervised visits have gone well and the children express a wish for more time; to spend time unsupervised and found it difficult to separate from her at the conclusion of each visit; and
c)they speak regularly to the Second Respondent maternal grandmother in New South Wales and appear to enjoy the calls, which take place during supervised visits.
The easier approach would be to leave the Orders in place until the trial and then awaiting a judgment in this complex matter perhaps until early in 2021.
However, I have reached a conclusion that it is, at this time, in the best interests of the three girls to have some limited day time unsupervised visits between now and the final hearing. Neither the father nor do any of the medical experts opine that the mother’s fixed views about the father have transitioned in any way to place the children at any risk of physical harm in her care. The father’s solicitor, when asked, made no such submission.
Even though I will make an order that the mother not make hurtful or denigrating remarks about the father, or discuss these proceedings with or in the presence of the children (and she vigorously submits she has not or will not do so), I cannot be satisfied entirely that she can disguise her feelings about the father from the children.
However, because I believe it is in the best interests of these children to allow them to enjoy less restricted time with the mother, if the mother proves unable to control her emotions or expressed feelings, then not only will the family report writer have a chance to report on same, but also at the trial any of the events of recent times can be examined.
In many respects, the mother’s plea about what more can she do deserves some recognition – not out of any sense of fairness to her, but because the long term effect on continued supervised time for these children could be life changing for them.
Conclusion
Subject to the conditions I impose on unsupervised time commencing from Saturday, 20 June 2020, I will order the children spend unsupervised time on the following dates and for the following periods of time with the mother, namely:
a)Saturday, 20 and 27 June 2020 from 10.00am to 2.00pm;
b)Wednesday, 1 July 2020 from 10.00am to 4.00pm;
c)Saturday, 4 and 11 July 2020 from 10.00am to 4.00pm;
d)Wednesday, 8 July 2020 from 10.00am to 4.00pm;
e)Saturday, 25 July and 1 August 2020 from 9.00am to 4.00pm;
f)Saturday, 15 August and Sunday, 16 August 2020 from 9.00am to 4.00pm;
g)Saturday, 29 August and Sunday 30 August 2020 from 9.00am to 4.00pm;
h)Saturday, 12 September and Sunday, 13 September 2020 from 9.00am to 4.00pm; and
i)Saturday, 26 September and Sunday, 27 September 2020 from 9.00am to 4.00pm.
This regime allows both parents to spend time proximate to Z’s birthday on … and for the children to be in the father’s care for the Father’s Day weekend. The time on Wednesday, 1 and 8 July 2020 allows for school holiday time to occur with the mother.
The conditions I will impose are as follows:
a)I have not prescribed how changeovers are to occur and I will require further submissions (or parental agreement) on that issue;
b)I propose that the mother be ordered to continue to attend scheduled consultations with Dr V and to continue to take all medication as prescribed and recommended by Dr V;
c)I will order that both parents be restrained from:
i)discussing these proceedings or other issues of parental and adult conflict, with or in the presence of the children; and
ii)making any denigrating or hurtful comments about the other parent, or that parent’s extended family, to or in the presence of the children.
d)Interim Orders 1, 2 and 9(a) and (b) made 6 March 2019 will continue; and
e)Noting the proceedings are to be further mentioned before me on 27 July 2020, although I will order that the ICL have liberty to apply, I would not expect that liberty to be exercised save in an urgent event, but rather the case management hearing on 27 July 2020 (two months before the final hearing), will deal with any necessary parenting issues.
With a combination of current COVID-19 restrictions imposed on citizens in this State and the fact that the limited time the children spend with the mother until the trial should not, in my assessment, be spent travelling to the City EE area to see the maternal grandparents. I do not make holiday time orders for the children to spend time with the maternal grandparents. I do so, noting that the maternal grandfather is quite unwell and would like naturally to see his granddaughters. It seems to me however that the maternal grandmother should be able to travel to Queensland shortly and spend time when the children are with their mother.
I have decided against ordering overnight time until all the evidence is tested at the final hearing, however as can be seen in the dates set out, the children will ultimately spend alternate weekends (but no overnight) with the mother before the final hearing. I am prepared to also order weekly telephone time on the conditions that the weekly contact by telephone is uninterrupted; is no longer than 30 minutes and is in private and unrecorded. If it is possible for the time to occur by FaceTime, that would be suitable.
The result of the Orders of the Full Court setting aside the Orders of August 2019 means the parties will continue to have equal shared parental responsibility as ordered in March 2019. I do not propose to alter that order on an interim basis.
It follows from the reasons above that I do not regard it as in the best interest of X, Y and Z to change residence on an interim basis. They have lived with the father now since early 2019 and have attended DD School since the commencement of this school year. I do not regard it as in their best interests to create further possible uncertainty and instability to their living arrangements with the father, by changing the primary residence and schooling before all the evidence is considered at the final hearing.
As a result of a declaration made under s 102NA of the Family Law Act 1975, the mother will have representation for the final hearing. This means that the serious allegations of family violence which she levels against the father will be the subject of cross-examination by a legal practitioner.
Although the mother claims a high IQ, and she certainly is both articulate and highly literate, the more objective focus of a trained advocate for the mother is likely to assist both the Court and then, the quality of the decision that will shape the future of these precious little girls.
I accept that the mothers’ Application in a Case (in its various forms) sought some form of partial property orders (e.g. return of a car) and/or spousal maintenance (e.g. $400 per week for motor vehicle rental), however such relief has been before the Court previously and with a trial now so close, I take the view that such matters are best dealt with at the final hearing.
Finally, I note that the mother’s “interim orders sought” filed seek a number of additional orders, most of which, in view of the variations I will order pending the trial, are best left to the final hearing or are essentially case management issues best left to 27 July 2020, when I hope (and expect) the mother will have legal representation under the s 102NA arrangements.
I cannot, however, leave without comment the contention by the mother (at her proposed order 56) that the provisions of the “Anti-Discrimination Act 1986 (Cth) be applied for all Interim and Final Hearings, with particular reference to the Disability Discrimination provisions”. Such an order, as sought, is misconceived. The jurisdiction this Court is required to apply is prescribed in the Family Law Act 1975.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 June 2020.
Associate:
Date: 12 June 2020
6
0
1