Nolan and Nolan

[2014] FCCA 693

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOLAN & NOLAN [2014] FCCA 693

Catchwords:
FAMILY LAW – Parenting – interim hearing – Goode & Goode – untested evidence – graduated increase in the father’s time – requirement for supervision at changeover.

Legislation:

Family Law Act 1975

Goode & Goode (2006) FLC 93-286

Applicant: MR NOLAN

Respondent: MS NOLAN

File Number: MLC 4737 of 2013

Judgment of: Judge McGuire

Hearing date: 3 April 2014

Date of Last Submission: 3 April 2014

Delivered at: Melbourne

Delivered on: 10 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Byrnes

Solicitors for the Applicant: Clancy & Triado

Counsel for the Respondent: Mr Schetzer

Solicitors for the Respondent: Schetzer Constantinou

ORDERS

1. Order 2 of the interim orders that were made by consent on 24 July 2013 be discharged.

2. Until further order, that the children, X, born (omitted) 2004, Y born (omitted) 2009, and Z, born (omitted) 2001, spend time with the father as follows: 

   (a)Until 1 June 2014 for a maximum of 3 hours per week on a Saturday or Sunday with such day to be nominated in the absence of agreement by a representative of (omitted) Community Services and with all changeovers to occur under the supervision of (omitted) Community Services with the costs of such supervision to be paid by the Husband;

   (b)Thereafter for a maximum of 8 hours per week on a Saturday or Sunday with such day to be nominated in the absence of agreement by a representative of (omitted) Community Services and with all changeovers to occur under the supervision of (omitted) Community Services with the costs of such supervision to be paid by the Husband.

3. The parties do all things and sign all required documents to enrol for supervised changeover at Berry Street (omitted) and, upon acceptance to the programme, the requirement for (omitted) Community Services to supervise changeover be varied so that changeover occur at Berry Street, (omitted).

4. That during any period that the children or any of them are in the care of the father, he be restrained from consuming alcohol, and be so restrained for periods of 12 hours before any of the children come into his care. 

5. That in all other respects the interim orders of 24 July and 25 November 2013 remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Nolan & Nolan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4737 of 2013

MR NOLAN

Applicant

And

MS NOLAN

Respondent

REASONS FOR JUDGMENT

1. I have before me an interim application in respect of three children X born (omitted) 2004 (aged 9 years), Y, born (omitted) 2009 (aged four years) and Z born (omitted) 2011 (aged two years).

2. Proceedings were commenced on 14 June 2013 on the father’s application.  Interim orders were made by consent on 24 July 2013 providing, inter alia that the children live with the mother and that the children spend time with the father for a maximum of three hours per week on a Saturday or Sunday, such to be supervised by (omitted) Community Services (“CS”). 

3. Issues were raised generally on the affidavit material as to the father’s mental health and his capacity to care for the children.  A further interim order was added by consent on 25 November 2013 whereby the father was effectively injuncted from spending time or coming into contact with the children other than the terms set out above, and from any events at which the children are attendees or participants unless agreed in writing.

4. The matter was then adjourned for directions to 10 February 2014.  On that day his Honour Judge Altobelli acceded to the parties’ requests that the matter be adjourned for yet further interim hearing before me on 3 April 2014.  A final trial date was allocated for 28 August 2014 with trial directions.

5. In the interim time the parties and the children have had the benefit of family reports being prepared by Mr V who is an experienced psychologist well known to these Courts.  In addition the father independently obtained a psychiatric assessment from a Dr C. That process did not involve input from the mother.  There was, however, a second psychiatric assessment from a Dr D which did involve the mother. 

6. Now armed with these various reports, the father seeks a substantial increase in his time with the children whereby he spends each second weekend with X and Y from the Friday afternoon until the Sunday evening with a more conservative, graduated regime for Z culminating in orders in the same terms as for the girls operating as from July 2014.

7. The mother also proposes a change to the existing interim orders and in the interim pending the trial in August.  She agrees to remove the supervision aspect of the existing orders save and except that that changeovers be supervised.  She proposes a far more conservative regime than does the father, commencing with three hours per week on a Saturday or Sunday, then progressing to six hours per week on a Saturday or Sunday and thereafter eight hours per week on a Saturday or Sunday.  She also seeks numerous other interlocutory orders including yet another psychiatric assessment on the husband from Dr D and that the husband present for Liver Function Panel testing at her request, given her historical concerns as to his alcohol abuse.  Similarly she seeks an order that he attend for “alcohol counselling”.

8. It is proper that I comment on the nature of interim hearings generally with this matter as an example where there have already been at least two, and arguably three, listings of the matter to deal with interim issues.  The applications have been allocated a trial as early as August 2014.  Yet, I am now confronted with an application seeking further interim orders.  My understanding of the rationale for the current application is that psychological reports from Mr V and/or a psychiatric report from Dr D are now available.

9. There seems to have developed a practice (at least in Melbourne) of legal representatives conducting an interim hearing and then seeking a report being either a family report or a report from another expert together with a request for listing for further interim hearing.  The suggestion seems to be that the provision of these reports will necessarily agitate further consideration by the Court of the children’s best interests in the interim.  The result, of course, is often to delay the final trial and cause a clogging of already busy duty and trial lists with a plethora of interim hearings. 

10. It should be understood that an interim investigation and determination is in many ways is an “imperfect creature”.  Firstly, the evidence is not tested by cross-examination and it remains a truism that the Courts are often, if not usually, unable to make determinations of disputed fact and credit.  Such forensic testing of the evidence is invaluable in the determinative process and is, of course, available and fundamental to the trial process.  In this sense it should be remembered that reports from family consultants and other experts constitute evidence like any other evidence, albeit hopefully independent and objective.  Short of there being concessions as to factual observations or expert opinions that are provided in such reports, it is the cross-examination of the author which is crucial to the attributing of weight.  It is a mistake for parties and their lawyers to think that the mere obtaining of any expert report is of itself necessarily weighty evidence or determinative of any issue.

11. Despite these limitations, the Court is mandated to make determinations at interim stages of proceedings and in accordance with a child’s best interests. In doing so the Court is obliged to follow an intellectual and statutory course of consideration with reference to the factors in sections 60B and sections 60CC of the Family Law Act1975 (“the Act”). [1]

    [1] Goode & Goode (2006) FLC 93-286

12. Nevertheless, and despite my strong views as to the proper and effective administration of justice in these busy courts dealing with family law children’s matters, both parties now ask me to revisit the previous interim orders some four months before the final trial.  With some reluctance, I have agreed to do so.

13. Both parties were represented by counsel who provided me with well-prepared and well-argued submissions as to the untested evidence.

14. The thrust of the father’s argument is that he has successfully negotiated a period of supervised but extremely limited time with the children.  His counsel argues that the material before the Court including a report from the supervisor, the reports of Mr V, and the psychiatric reports of Dr C and Dr D are supportive of the requirement for supervision being removed and longer and more frequent periods of time for the father with the children. 

15. It is inherent in the father’s argument that he has the capacity to care for the children and that they would be safe and comfortable in his care.  To his credit, he acknowledges Z’s young age and the need for a more conservative regime of time, at least at the early stages. Also to his credit, the father concedes that there could be an injunctive order to prevent his consumption of alcohol during any period that the children are in his care and given the significant historical allegations made by the mother to the various supervisors in this regard.

16. The implication in the argument of the father’s counsel is that the Court should give considerable weight to the consideration under section 60CC(2)(a) “making orders which benefit children in having meaningful relationships with their parents” and that, on balance, more weight should be attached to this factor rather than the other “additional considerations” which raises concerns as to the father’s capacity to care for the children and his insight into their needs.

17. The father generally does not concede the particulars of the mother’s various concerns or, alternatively, argues that the mother overplays their significance in respect of his ability to care for the children.  Those concerns relate to a history of alcohol abuse and the mother’s concerns/allegations that the father suffers some mental illness or personality disorder manifested in his excitable nature and behaviour, and generally lacking insight.  She alludes, for instance, to an incident where the father allegedly produced compromising photographs of he and the mother and threatened to publish such photographs if he did not achieve his desired time with the children.

18. The mother, not surprisingly, urges the Court to take a far more  cautious approach to the children’s time with the father in the interim with her counsel (also not surprisingly) emphasising that the Court should err on the side of caution until all of the evidence is fully tested.

19. The mother’s counsel proffers that the mother does, in fact, support the children having a full and beneficial relationship with their father and there is no malice evident in her applications to date seeking to place conditions on such time or to limit the frequency or duration of the children’s time with their father.  There is some support for this argument in the very orders that the mother now seeks which effectively remove the requirement of supervision during the children’s times with the father and increase the time to block periods of up to eight hours whilst still avoiding the father’s quest for overnight time. 

20. Interestingly, and arguably, by moving her position in this way the mother’s argument as to the father’s alleged incapacity and lack of insight in respect of the children’s care and needs, loses much of its force.  When challenged in this regard, the mother’s counsel suggested that there is a balancing process for parents, similar to that undertaken by the Court, in encouraging and facilitating children’s relationships on the one hand and protecting them on the other.  On reflection, I accept that submission.

21. In making my determination I must have the children’s best interests as my paramount consideration[2]. I determine their best interests in a pragmatic sense by referencing the probative evidence and the parties’ proposals the various considerations set out in section 60CC of the Act. There are two primary considerations in s60CC(2) being:

    a)the benefit to the children of having a meaningful relationship with both of the children’s parents;  and

    b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    [2] Section 60CA of the Act

22. The definition of family violence in the act is a broad one. Recent amendments to the act provide that I am to apply “greater weight” to the consideration under S60CC(2)(b).

23. There are numerous additional considerations under S60CC(s) of the Act. I must address the evidence to each of these subsections insofar as I can, given the limitations of interim hearings. Those considerations include but are not limited to the following:

    i)the views of the children, if any, in relation to their living and parenting arrangements and the weight to be attached to those views; 

    ii)the capacity of the parents to attend to the physical, intellectual and emotional needs of the children; 

    iii)the attitudes of the parents generally to the responsibilities of parenting; 

    iv)any practical issues of children moving between their parents and the likely effect on them of any changes to existing arrangements.

24. Dr C’s report is annexed to the father’s affidavit sworn 11 June 2013.  The father was assessed by the doctor on 30 May 2013 and the report is dated the following day.  It was undertaken without a court order or direction and without any input from the mother.  The report notes some previous prescription of anti-depressants but with the father denying any mental health difficulties prior to separation.  He is reported as fairly anxious and lost after separation but denied any specific depressive symptoms.  Dr C notes the making of an intervention order post-separation and with at least 26 breaches alleged including some convictions.  The grounds of the intervention order application suggest violent behaviour towards property post-separation.

25. In his conclusions Dr C says: 

    (1) Whilst Mr Nolan has suffered from some anxiety in the context of the relationship breakup, I do not find that he suffers from any mental health condition. 

    (2) I do not see evidence of bipolar disorder. 

    (3) I do not believe he requires ongoing anti-depressant medication but it may be useful for him to have ongoing psychological support to assist him to deal with the difficulties of the breakup as well as the legal difficulties which have arisen. 

    (4) It does not appear that Mr Nolan lacked awareness that the relationship counselling had not worked and he has lacked care in his breaches of the intervention order.  Neither of these factors indicates mental disorder, or risk to the children, however. 

    (5) On the basis of my individual assessment of Mr Nolan, I cannot see any grounds whatsoever for any restriction with contact with the children or any need for supervision. 

26. Dr D’s assessment and report has the added value of input from the wife.  His report is dated 20 March 2014.  The father’s report to Dr D of his  history of alcohol consumption does not appear remarkable.  Dr D addressed the mother’s concerns of the father having a diagnosis of bipolar disorder.  The father denied any such history or diagnosis.  Similarly, the father refuted the mother’s particular allegations in respect of historical abuse of alcohol.

27. The mother expressed concern to Dr D that the father inappropriately talked to the oldest child, X, about his personal issues.  She also reported that she was content that the supervised contact had progressed satisfactorily. 

28. Dr D noted the father’s “presentation” as complex.  He suggested a hyperthymic personality style being representative of “persons with a propensity towards being highly energised, talkative, emotionally sensitive, sexually driven and expansive in mood”.

29. Despite Ms Nolan’s version, Dr D appeared to accept a “significant history of alcohol consumption”.  At paragraph 8 of his conclusions Dr D says:

    Mr Nolan appears to have engaged in a range of poorly regulated and judged behaviour prior to and following separation.  Such behaviour, including purported incessant phone calls to Ms Nolan, contributed to the institution of an intervention order and multiple breaches of the Order.  I gather these matters were adjudicated in early December 2013.  Mr Nolan also, according to Ms Nolan, displayed peculiar behaviour on the day they attended a counselling session with Mr V. 

    I would recommend the Court obtain a report from Mr V detailing his observations of Mr Nolan on that day.  If there is evidence that Mr Nolan was displaying behaviour consistent with a manic state, it further adds weight to a probably underlying mood disorder such as Bipolar Disorder.  Mr V might also be able to provide further observations of Mr Nolan if he has seen him on more than occasion. 

30. And at paragraph 10:

    Mr Nolan presented as a friendly and polite man in the assessment.  He was, however, notably pressured and loud in speech, and mildly heightened and expansive in mood.  I could not diagnose a hypomanic or manic state based on these qualities, but his mood and speech qualities were prominent.  Whilst these qualities were pronounced, his mental state was not so unstable and concerning that I would be concerned he should not be permitted contact wit his children.  It is less clear if Mr Nolan would be able to manage the children independently and without support. 

31. Finally, at paragraph 11 of his conclusion, Dr D says:

    I would recommend, that despite likely improvements over the last six or more months, that he be referred to a Psychiatrist to conduct further longitudinal assessment and consider treatment options if the diagnosis(es) become clearer and more definitive.  Mr Nolan could, for example, benefit from a trial of a mood-stabilizing medication in addition to the antidepressant he is current prescribed.  Given his history of excessive alcohol consumption and lack of engagement with alcohol counselling services in the past, I would suggest he also attend a suitable alcohol counselling service to consolidate the changes he has purportedly already made.

    In the meantime, I would recommend consideration be given to Mr Nolan being granted slowly increased incremental time with the children, with a view to unsupervised time in the event that contact continues to be uneventful.

32. The psychologist, Mr V, has provided a number of reports and addendum reports.  His conclusions and recommendations are summarised at paragraphs 40 and 41 of his report of 3 February 2014 as follows:

    Insofar as the future, indefinite supervision is not an option.  It may be that an arrangement whereby Mr Nolan sees the children on a regular basis each alternate weekend from a Friday after school until a Sunday night might be the most appropriate way to proceed in the immediate term.  There needs to be some level of ongoing monitoring, and it may be that something like a 65(L) order where assistance is provided to Mr and Ms Nolan with the implementation of the Orders such that that person can be involved and can report back in the even that there are problems. 

    It seems clear that for all concerned a level of ongoing scrutiny and transparency and reportability may provide the best avenue forward.  There are many unanswered questions and it is difficult for (sic) form a definitive view.  A testing of evidence, however, may ultimately shed significant light on the functioning of both parents.

    My inclination is to support a more conservative and uncertain approach, especially over 12 months.  It may be that Orders should be made for the next 12 months and on condition that the matter does not return to Court.  That self-executing Order for increased time to each alternate weekend from a Friday night until a Monday morning and an overnight in the alternate week, plus a sharing of school holidays, should be implemented.

1. Not surprisingly, the father’s counsel emphasises the above paragraphs from Mr V’s report in arguing that supervised time cannot proceed indefinitely, but that the children should move to alternate weekend time with their father.  The mother’s counsel bases his argument on the more cautious approach from Dr D and the reservations set out in his report.  By way of emphasis, I say that neither Dr D nor Mr V have yet been cross-examined as to their observations, opinions and recommendations.

2. After reflection and consideration, I favour the proposal of the mother albeit on a different scale of implementation given there being a trial listed in late August.  I find some difficulty in logically connecting the conclusions and recommendations of Mr V, as set out above, with some of the text of his report.  For instance, he appears to recommend the moving for these children onto fortnightly weekend time, seemingly ignores some real concerns in respect of the oldest child, X.  Paragraph 28 of Mr V’s report gives corroboration to the mother’s concerns expressed to Dr D that Mr Nolan improperly involves the children in adult matters.  X reports to Mr V at that paragraph:

   X explained that she was talking to her father more regularly, but then he started “talking about adult stuff”, at which point her mother intervened and ended the telephone call.  X seemed relieved that the intrusion of “adult stuff” had lessened explaining “…sometimes it happens but not that often anymore.  I just don’t get the adult stuff.  I don’t understand why dad talks to me about it, it makes no sense.” 

3. Mr V noted a sense that X needed to be vigilant around her father and that his behaviour was a source of some anxiety for her.  She spoke of his lack of insight, with particular reference to an unfortunate event that occurred at her school and which obviously caused the amendment to the interim orders in November 2013.  Paragraph 39 of Mr V’s report is particularly relevant.  He says:

   The presentation of X remains a concerns; she loves her father, wants to see him, but feels anxious and burdened by him.  I would implore him to seek help around the personal issues that contribute to the behaviour that so affects X.  Ultimately, it will be his choice to act protectively, and to reflect upon himself or not; and instead blame others for his action.  No court order is likely to change behaviour that is deeply entrenched.

4. I remain concerned that Mr Nolan has apparently not acted prudently on some suggestions by Mr V and/or Dr D as to issues of his personal behaviour and insight.  Both Dr D and Mr V (at least in his earlier meetings with the father) raise issues in respect of his personality, which Dr D suggests might be addressed.  There is no evidence before me that the father has done so.

5. This is a situation where there are three young children and the younger two are not yet of school age.  I am satisfied that there are unresolved difficulties for X in her relationship with her father.  Thus far, and pursuant to consent orders, the children’s time with their father has been limited both in frequency and duration.  It has had the added condition of supervision.  Both parties seek to move forward until a proper testing of the evidence.  In all of the circumstances, I find the father’s proposal to be something of a “quantum leap” where relevant matters remain unresolved.  I, therefore, favour the mother’s more cautious approach. 

6. I am not inclined to order yet a further psychiatric assessment of the father.  As my reasons suggest above, and as I understand Dr D, it may be for the father to acknowledge that he would be assisted by further assessment.  I am of the view that it is up to him to adduce such evidence at his trial if he is so inclined.

7. There will be an order injuncting the father’s use of alcohol when the children are in his care, and for a period before they come into his care.  Again, however, I am of the view that it is for the father to determine whether or not he attends any alcohol counselling group.  It is my task to protect children where necessary. I am satisfied that compliance with any injunctive order will achieve this.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  10 April 2014