OGILVY & SASSALL

[2013] FCCA 835

FEDERAL CIRCUIT COURT OF AUSTRALIA

OGILVY & SASSALL [2013] FCCA 835

Catchwords:
FAMILY LAW – Whether final orders or interim orders should be made.

Legislation:
Family Law Act 1975 (Cth)

Applicant: MR OGILVY

Respondent: MS SASSALL

File Number: MLC 3364 of 2011

Judgment of: Judge Phipps

Hearing date: 15 March 2013

Date of Last Submission: 15 March 2013

Delivered at: Dandenong

Delivered on: 15 March 2013

REPRESENTATION

Counsel for the Applicant: Mr Glass

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Williams

Solicitors for the Respondent: Pearsons Lawyers Pty Ltd

Counsel for the Independent Children’s Lawyer: Ms McCreadie

Solicitors for the Independent Children’s Lawyer: Bowlen Dunstan & Associates Pty

ORDERS

1. That the matter be fixed part heard for Final Hearing on 18 November 2013 at 10.00am in the Federal Magistrates Court of Australia at Dandenong with an estimate of 1 day.

2. The parties attend a post separation parenting course.

3. The parties and Independent Children’s Lawyer have leave to apply for more than 5 subpoenas.

4. Pursuant to s.62G(2) of the Family Law Act1975 (Cth) the parties and child/ren X born (omitted) 2008 and Y born (omitted) 2009 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Dandenong Registry of this Court for the purposes of the preparation of an updated Family Report to be made available to the Court and the parties. ‌

5. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the Family Consultant. Such report to be released prior to the next hearing.

6. The Family Report to deal with the following matters:

   (a)Any views expressed by the said child/ren and any factors (such as the said child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child/ren.

7. The Family Consultant has leave to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer (if applicable) in this matter.

8. All previous Orders be discharged.

9. The parents have equal shared parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009.

10. Each parent shall have the sole responsibility for making decisions about the children’s day to day, care and development during the times the children live with them respectively.

11. Each parent shall ensure the other is kept informed as soon as is reasonably practical for:

    (a)Any medical problems or illnesses suffered by the children whilst in their care including the names and contact details of any treating medical professional;

    (b)Any medication that is being prescribed for the children;

    (c)Any specialist medical appointments with any doctor, psychologist, psychiatrist, counsellor or therapist regarding the children;

    (d)Any social, school or religious functions which the children are to attend;

    (e)The residential address of each parent;

    (f)The details of any person with whom each parent may be residing (including full name and date of birth);

    (g)The telephone contact number of each parent and current email addresses;

    (h)Any other matter relevant to the welfare of the children.

12. For the purpose of facilitating Orders 9 & 11 herein the parents shall communicate in the absence of the children and preferably in writing via email and/or text.

13. Each parent be entitled to attend all events involving the children including but not limited to sporting functions, extracurricular activities that allow for parental attendance or participation and the parent who has the child/ren in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child/ren’s transportation to and from the event unless otherwise agreed between the parents in writing.

14. The children live with the Father.

15. The children spend time with and communicate with the mother as follows:

    (a)Commencing 16 March 2012 and each weekend thereafter for a period of 4 months from 10.00am Saturday to 4.00pm Sunday such time to occur with the maternal grandmother and/or maternal aunt being in substantial attendance and compliance with paragraph 16 herein;

    (b)Commencing at the conclusion of the period referred to in (a) and upon the mother providing a written report from her treating medical practitioners as set out in paragraphs 19, 20 and 24 as to her compliance with –

    (i)     attendance;

    (ii)    treatment; and

    (iii)   medication;

    and upon compliance with paragraph 16 herein:

    (iv)from 10.00am Friday to 4.00pm Sunday each week with the maternal grandmother and/or maternal aunt to be in substantial attendance.

16. That the parents undertake a random supervised drug screen within 24 hours of the receipt of a request for same from the Independent Children’s Lawyer. Such results to be in the GCMS format and the results of same to be provided to the Independent Children’s Lawyer and the other parent’s legal representative.

17. In order to facilitate changeover the mother shall collect the children from the (omitted) Police Station at the commencement of time and the father shall collect the children from the (omitted) Police Station at the conclusion of time unless otherwise agreed in writing.

18. Unless for a medical emergency and written confirmation of the same from the treating medical practitioner the mother attend upon the (omitted) medical practice for treatment (the clinic) (address (omitted)).

19. The mother comply with the clinic as to the use of prescription medication and over the counter pharmaceuticals in respect to dosage, frequency of use and script renewal.

20. The mother attend upon a psychologist nominated by the clinic for treatment in respect of her anxiety, depression and vulnerability to excessive consumption of prescribed medication and over the counter pharmaceuticals.

21. The mother comply with the directions of the psychologist as to treatment.

22. The mother provide a copy of these orders to the clinic and her treating psychologist.

23. The mother irrevocably authorises the clinic and her psychologist to contact the Independent Children’s Lawyer, the father and his lawyer in the event that the mother fails to comply with her obligations pursuant to these orders.

24. The mother also attend upon a psychiatrist nominated by the clinic and attend upon such psychiatrist as required and comply with his lawful instructions as to treatment.

25. The mother provide to such psychiatrist a copy of all psychiatric reports prepared by Dr K to aid his assessment of the mother, including a copy of these orders and the Court’s reasons for judgment of this day.

26. The mother at her expense provide quarterly reports from her clinic psychologist and psychiatrist to the Independent Children’s Lawyer and the father’s solicitors.

27. In addition the mother provide the psychologist and the clinic with copies of all Dr K’s reports and the Court’s reasons for Judgment and these orders.

28. That no later than 14 days prior to the adjourned date the parties are to make, file and serve any further Affidavits upon which they seek to rely.

29. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the court certifies it was reasonable for the parties to employ an advocate.

30. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3364 of 2011

MR OGILVY

Applicant

And

MS SASSALL

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This case has got to the point where evidence is finished and final addresses were about to begin.  It is the fourth day of the hearing.  Counsel for the Independent Children’s Lawyer now proposes that there be interim orders only, which would extend the children’s time with their mother, and orders requiring the mother to engage with a psychologist and psychiatrists in accordance with the recommendation of Dr K.  The proposal is that the time be from 10.00am Saturday to 4.00pm Sunday with a condition that the maternal grandmother be in substantial attendance during that time. 

2. Following engagement with psychologists and psychiatrists, and continuation of the current drug screen orders, if a satisfactory report is received and drug screens show only use of prescribed medication approved by the mother’s general practitioner, the proposal is time be extended for a further four months to Friday night to Sunday night.  There would then be a further Family Report and the matter then come back for further hearing.

3. The case involves the parties’ two children, X, born (omitted) 2008, and Y, born (omitted) 2003. 

4. Under interim orders which commenced in this case in April 2011, the children are living with their father and spending supervised time with their mother.  Since August 2012, that has been from 10.00am to 3.30pm each Saturday and Sunday, supervised by a maternal aunt.  The Independent Children’s Lawyers application is supported by the mother and opposed by the father.

5. The background to the case is that the parties commenced their relationship in (omitted) 2007 and commenced living together in (omitted) 2008.  They separated in July 2010.  The police applied for an intervention order against the father naming the mother and the two children as the protected persons on 15 July 2010.  The Department of Human Services became involved with the family in 2010.  A protection application was made by the Department of Human Services on 18 April 2011 in which the Department of Human Services supported the children being placed with their father and having supervised time with their mother.  The initial involvement by the Department of Human Services was because of allegations of family violence. 

6. Their reason for acting in April 2011 was that the child protection officers had concluded that the mother was abusing prescription medication and non prescription medication, non prescription but legal medication, to the extent that she was incapable of caring for the children and the children were at risk.  A protection application was made in the Childrens Court of Victoria.  At a point where there had not been a protection order made the father applied to this court for a recovery order.  In support of his application, there was a letter from the Department of Human Services.  In April of 2011 an ex parte recovery order was made. 

7. The children were recovered from the mother by the Australian Federal Police at 10.00pm and since then have lived with the father.  The initial orders were made on 20 April 2011 then further interim orders were made on 19 May 2011, 3 October 2011, 9 October 2011, and 16 August 2012.  As the case commenced, the significant issues which appeared at the commencement of the case were protection concerns or protection issues about the children with both the father and the mother, that is, whether there was a risk involved to the children with being with the father and whether there was a risk involved with the children being with the mother. 

8. The father admittedly used amphetamines and speed in the 2004/2005 era.  His parents made a notification and the crisis assessment team came.  That was because he was influenced by those drugs.  He had an admission to the (omitted) Medical Centre as an inpatient, again, because of mental problems.  He has had a series of convictions for driving offenses, most of them for driving while unlicensed or driving while a licence is suspended.  In February 2006, he was convicted of driving while disqualified and possessing drugs and he served a two month period of imprisonment. 

9. In December 2006 he was sentenced to a term of imprisonment which was either six or seven months, the evidence varies.  He was convicted for obtaining a financial advantage by deception, the date of the offense being 8 February 2006.  He was placed in the Metropolitan Assessment Prison and then a few weeks afterwards he was transferred to the (omitted) Psychiatric Hospital, which is part of the prison system.  He was there for 10 weeks.  The discharge summary shows that he was diagnosed as suffering from paranoid schizophrenia. 

10. In 2008, the father was again convicted of driving while disqualified and using an unregistered motor vehicle.  In the Magistrates Court of Victoria, he received a sentence of four month’s imprisonment partially suspended.  He appealed to the County Court of Victoria, and for the purpose of that appeal, a report was obtained from forensic psychiatrist, Dr S, who concluded that his presentation was consistent with a diagnosis of schizophrenia of the paranoid type.  He told Dr S that he had delusionary episodes involving security forces and the army. 

11. That report by Dr S and that appeal to the Country Court of Victoria was after the parties had commenced living together.  The mother alleges family violence and abuse throughout the relationship which is denied by the father.  The mother acknowledges that she suffers from long term anxiety and depression commencing when she was in her twenties.  She also says that she suffers menstrual period pain, she has short cycles, and needs to take strong pain medication.  She gave evidence of having a torn hamstring which is very painful and requiring quite lengthy treatment and painkillers. 

12. The mother denied until the commencement of the hearing that she had abused those drugs.  There is a lengthy report by the Department of Human Services in April/May 2011.  They had investigated the mother’s prescription drugs, drugs that had been prescribed to her through pharmacists, that included a large number of Valium tablets.  The mother says that, at that time, her Medicare card and Health Care benefits card had been taken and she said that some of those prescriptions were not done by her.  At this point, for the purpose of determining this application, I do not need to make a finding about that although it will probably be necessary for a finding about that to be made in the future. 

13. She has had a large number of drugs which are used for anxiety or depression, for pain.  There are allegations that she would sleep for long periods and that she was treating the children inappropriately.  The father alleges that, at one point, she cleaned the children’s nostrils with cotton buds to the point that they bled and similar treatment for a cat.  The allegations are denied again by the mother.  We are at the point now where the mother admits that, at times, she has abused prescription drugs and she does admit to doctor shopping. 

14. Dr K saw both parties and he has prepared reports on both of them.  His initial report on the father was, I would say, inconclusive because Dr K found that the father was not forthcoming.  He did not conclude there was paranoid schizophrenia.  Dr K knew about the admission to the (omitted) Psychiatric Hospital.  He was told about it but had not seen the discharge summary.  He did not know about Dr S’s report.  He had a different opinion once he had seen those reports.

15. The father has attended Dr M a psychiatrist.  Dr M has given evidence.  There is no written report from him.  He attended on subpoena and gave evidence.  He said that the father had attended on him on six occasions.  He had interviewed him for half an hour to an hour on each occasion about a month apart over a six month period.  On none of the occasions did he show symptoms of schizophrenia.  Dr M said that if the father was suffering from schizophrenia it would have shown in that period and his opinion is that he does not suffer from schizophrenia and that he was misdiagnosed on earlier occasions and that what the father had suffered from on earlier occasions was drug-induced psychosis.

16. Dr K recommended that the mother should have a single general practitioner to prescribe her medication.  She should have a mental health plan and see a psychologist and she should attend at a psychiatric clinic from time to time.  The mother has had a number of presentations at hospitals when she has had anxiety attacks or worse.  One or two of those have been admissions.  All this shows is significant issues at the commencement of the case concerning the mental health of each of the parties.

17. The position is that the children have been in the care of the father for nearly two years.  The Family Reports prepared by Ms M show that the evidence generally is that the children have been satisfactorily cared for.

18. Ms M has prepared three reports.  Her last report in February 2013 was after the children had been spending Saturdays and Sundays with their mother.  From April the year before she saw a much improved relationship between the children and their mother.  What has emerged in the course of the proceeding is a significant best interest consideration.  The Family Law Act 1975 (Cth) as it was before the amendments in the middle of last year applies since this case was commenced before the commencement of those amendments. The consideration of 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 is something which must be considered. The attitude to the child and the responsibilities of the parent as demonstrated by each of the child’s parents has to be considered, as of course the primary consideration of the benefit to the child having a meaningful relationship with each of the child’s parents and the nature of the relationship of the child with each of the child’s parents.

19. Ms M’s reports found the father presented quite well, perhaps with some limited ability to express himself.  She has recommended on each occasion that the children should be living with their father.  The mother, as I have said, alleges family violence and abuse towards her both during the relationship and continuing afterwards.  What has emerged during the evidence as significant, or what was there initially but did not appear as such a significant issue, is the father’s attitude towards the mother and the father’s attitude to the mother’s relationship with the children, all best interests considerations.

20. The father, in the course of giving his evidence, referred to the mother as “that woman”.  He was quite aggressive in his evidence.  When asked if he could say positive things about the mother he could not.  When asked what attributes she brought of benefit to the children, he could not say.  He did not consider the mother should have anything to do with the children’s kindergarten or anything to do with the children’s school.  All of the best interests considerations have to be looked at.  All were relevant at the commencement of the case but issues arising out of the father’s attitude towards the mother and her relationship with the children loom a lot larger at this stage of the case than they did at the commencement.

21. The Independent Children's Lawyer’s position at the commencement of the case as a preliminary view was that the children should remain living with the father and spend supervised time with the mother.  The Independent Children's Lawyer’s position now is that if the mother could demonstrate that she has her use of drugs, that is use of legal drugs, prescription drugs or non-prescription drugs, under control, that the Independent Children's Lawyer would be inclined to recommend that the children should live with their mother.  There is some force in that submission.

1. There is much evidence about the mother’s use of drugs and misuse of drugs.  There has been evidence from Dr P who is the head of Melbourne Pathology and has other positions as well, a highly expert and experienced pharmacologist.  He was able to describe the results of the mother’s drug screens where those have been done by gas chromatography.  This means it is possible to identify the types of medication that are producing results which show opiates and benzodiazepines.  The mother’s February 2013 test shows opiates.  There was a conclusion that it would be a result of prescribed medication containing codeine.  There are earlier tests in October 2012 and January 2013 where there are confusing results.

2. Dr P says the most likely explanations of the high result for opiates was heroin, possibly morphine.  It could come about from a medication containing codeine, but Dr P said it would be the highest result his laboratory had ever seen.  It is a fair summary of his evidence that he considered the most likely source was heroin, given the mother’s background.  She would not have easy access to morphine and so heroin seems the likely explanation.  Curiously there is no suggestion in the evidence that the mother has been using heroin or ever has used heroin.  The mother acknowledges smoking some marijuana and using amphetamines, and speed, but not heroin.  If the mother can demonstrate, as she alleges at the moment, that her drug use is appropriate, that is use of only prescription medications as prescribed by a medical practitioner and use of non-prescribed medications again as recommended by a medical practitioner, the Independent Children's Lawyer’s potential view that the children’s best interests would lie with living with their mother may well be correct. 

3. Another of the best interests considerations is the desirability of making an order which is least likely to lead to further litigation.  If the case was decided now that might mean orders made as proposed by the father, that is for the children to live with him and for the mother’s time to continue as it is now, daytime only supervised, or as currently recommended by Ms M, the Family Report writer, that it should be extended to overnight but still only supervised.  If they were final orders and they started to break down because of the relationship between the parties and the father’s attitude to the mother, that might lead to further proceedings commencing perhaps within only a few months.

4. If I came to the conclusion that I could not be satisfied to the extent necessary that the mother’s drug use was appropriate so that she did not present a risk to the children and if I concluded the mother was too great a risk, and then the mother got herself in the position where she had strong professional material which showed that her drug use was appropriate and if that was combined with a break down in the arrangements in final orders, she would be likely then to commence further proceedings and the whole process would start all over again.

5. Mr Glass, for the father, puts the powerful argument that this case should be concluded.  It is a case which is two years old.  He says there is nothing new in the issues, it is not as if the mother has been surprised by anything that has come about.  The mother’s use or misuse of medication has been an issue from the commencement of this case and so there is nothing to be gained by putting the final decision off.  If the mother can not put her best position forward now, there is no reason to say she could put it forward in a few months time and she is not at all taken by surprise.  It is a court proceeding, she should have been ready.  There is also the issue that the father is legally aided; his Legal Aid may well be brought to an end.

6. The father currently has ceased employment and cares full time for the two young children who are close in ages.  He has assistance from his family but that is the normal type of grandparent and family assistance.  He is dependent upon social welfare payments, Centrelink payments and supporting parents payments and family tax benefits.  Therefore, he is dependent upon Legal Aid for funding.

7. The principles for conducting child related proceedings are contained in Division 12A of Part VII of the Family Law Act 1975 (Cth). In child related proceedings, the first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. The third principle is the proceedings are to be conducted in a way that will safeguard the child concerned from being subjected to or exposed to abuse, neglect or family violence and safeguard the parties to the proceedings against family violence. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

8. The court can decide what issues should require full investigation, what may be disposed of summarily and decide the order in which issues are to be decided and deal with as many aspects of the matter as it can on a single occasion.  It is fair to say that what comes out of those is that the court has to consider the effect on the children of the proceedings and needs to complete the proceedings as soon as possible in all of the circumstances.

9. The balance of considerations is in favour of adjourning the proceedings and making interim orders only at the moment.

10. There are significant best interests considerations given the father’s attitude to the mother.  Other significant matters are that the mental health of the parties and the risk factors in relation to each party.  If the mother can demonstrate that her reliance on medication is not a risk to the children that is a very significant matter in this case.  I am not confident, on the state of the evidence at the moment, that the decision which would be in the best interests of the children in the long term can be made as the evidence stands at the moment and there is a risk that the matter would be back in court before the end of the year if final orders are made.  It is better that the current proceeding be adjourned  with the ability to use the evidence to date in any further hearing.  I do propose to make interim orders only and adjourn the further hearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  17 July 2013