Padley and Padley

[2016] FamCA 443

FAMILY COURT OF AUSTRALIA

PADLEY & PADLEY [2016] FamCA 443

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests of child – Where there is one child of the marriage – Where the Court orders the child to live with the mother and spend time with the father

APPLICANT: Mr Padley

RESPONDENT: Ms Padley

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

FILE NUMBER: SYC 1219 of 2015

DATE DELIVERED: 6 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: Pryor Tzannes & Wallis

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Eleanor Murphy & Company Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

IT IS ORDERED

1. That the child X born … 2013 live with the mother.

2. That the child spend time with the father as follows:

   (a)       Commencing on Thursday 9 June 2016 and each alternate week thereafter, from 9 am until 1 pm on Thursday and from 9 am until 1 pm on Sunday.

   (b)       Commencing on Friday 17 June 2016 and each alternate week thereafter, from 3 pm until 7 pm on Friday and from 9 am until 1 pm on Sunday.

   (c)       On each of the following, if the child is not spending time with the father pursuant to these orders, between 3 pm and 7 pm on;

   (i)Religious ceremony 1

   (ii)Religious ceremony 2

   (iii)Religious ceremony 3

   (iv)Religious ceremony 4

   (v)Religious ceremony 5

3. That for the purpose of Order (2)(b) the father may collect the child from pre-school. If the father advises the mother in writing by letter, text or email that he does not wish to collect the child from pre-school, then changeover will take place in accordance with Order (4).

4. Except as provided in Order (3), and unless otherwise agreed, changeovers for the purpose of implementing these orders will take place at Suburb C Library.

5. That the father is to be accompanied by an adult member of his family who has signed the form of acknowledgement prepared by the Independent Children’s Lawyer (“ICL”) and has spoken to the ICL about the reasons for their participation. The ICL shall provide to the solicitors for the mother copies of the signed acknowledgements and a list of those family members to whom he has spoken. For the purpose of this order, the members of the father’s family who may accompany him are the paternal grandmother, Ms D Padley, Mr E, Ms F and Ms I.

6. That each parent notify the other as soon as possible of any significant medical condition suffered by the child; provide the details of the treating doctor and authorise the treating doctor to communicate any information about the child to the other parent.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padley & Padley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1219 of 2015

Mr Padley

Applicant

And

Ms Padley

Respondent

REASONS FOR JUDGMENT

1. X who was born in 2013 is not yet three years old. She is the child of Mr Padley (“the father”) and Ms Padley (“the mother”).

2. The parents married and commenced to live together in 2011 and they separated on 17 October 2014 when the child was a little more than one year old. At separation, the mother took the child from the home the parents shared and has since lived with her parents.

3. On 14 August 2015, Orders were made in the Federal Circuit Court which provided for the parents to have equal shared parental responsibility for the child; that she live with the mother and that she see her father on Monday, Thursday and Sunday for periods of two and a half hours.

4. In October 2015, without telling the mother, the father took the child to a speech pathologist and to a doctor who took blood from the child for testing.

5. As a result of those actions on the part of the father, the orders made 14 August 2015 were suspended. The father appealed against the suspension and ultimately the appeal was allowed and the matter remitted for re-hearing.

6. Between the suspension of the orders and the re-hearing, the father continued to spend time with the child, by arrangement with the mother, under her general supervision.

THE HEARING

1. The matter came before the Court for an interim determination of the parenting arrangements for the child until such time as the substantive parenting and property proceedings can be heard and determined. Because these were interim proceedings, there was no cross-examination and where factual matters were in issue, those issues could not be determined. However, as submissions unfolded, it was clear that there were no real factual disputes but rather differences of opinion between the parents about the way in which the child’s time with the father should be structured and what measures should be put in place to make sure she was safe and, perhaps more importantly, to reassure the mother.

2. The parents were each permitted to rely on a number of affidavits, including very recent updating affidavits and affidavits of other family members and friends.

3. The Court was also assisted by a report from the single expert, Dr H who is a child and family psychiatrist in private practice. Dr H saw the parents and the child in November 2015 and was provided with the relevant medical records.

4. An Independent Children’s Lawyer (“ICL”) was appointed for the child.

THE COMPETING APPLICATIONS

1. The father sought orders that his time with the child be accompanied by a family member for three periods of up to four hours each week for two months. After two months he proposed that the child spend time with him, unaccompanied, for two periods of four hours each week. Thereafter the father proposed a graduated progression of time that would result in the child spending alternate weekends with him after eight months.

2. The father also asked the Court to order that the child spend time with him on important religious occasions. Both the parents are of the same religion and both raise the child in that faith.

3. The mother sought orders that the father spend time with the child each Saturday from 10 am to 11.30 am; each Monday from 3 pm until 4 pm and each Thursday from 9 am until 10.30 am in the company of the mother or a third party. The places where the time was to be spent were specified. They were all public places. The mother’s proposal did not allow the father to take the child to the homes of his parents or his extended family and did not include any time with the child on holy days.

4. The ICL submitted that the Court should make orders in accordance with the recommendations of Dr H. He proposed that the persons who accompanied the father and the child should sign an acknowledgement prepared by the ICL of their responsibilities to the child and that he should have the opportunity to speak to each of them by telephone to ensure that they had a clear understanding of the reason for their involvement. The ICL provided a form of acknowledgement that he proposed to submit to each of the accompanying persons.

5. The form of the acknowledgement proposed by the ICL is set out below:

   I undertake to accompany the father, [named] at all times that I am nominated to be the accompanied person with him during the time he spends with his daughter, [B] born … 2013.

   I am aware of the reasons that I need to accompany the time between [the father] and the child and I will ensure to the best of my abilities that the child is not exposed to any risks during the time that she spends with [the father].

   In the event that the child is exposed to any risks or I believe that she will be exposed to any risks, I will use my best abilities to stop the time between [the father] and the child and return her to the care of her mother, [named].

THE REPORT OF DR H

1. Dr H, a child and family psychiatrist in private practice, prepared a report as a single expert. The report dated 18 February 2016, was in evidence. Although the report has not been tested, in circumstances where the decision which is being made in relation to the child is an interim decision and will govern the parenting arrangements for her only until the matter can be heard and determined, the report of Dr H attracts significant weight.

2. One of the significant matters in relation to the decision about the child’s parenting is the fact that the father has been diagnosed as suffering from a psychotic illness. The father relied upon a report of his treating psychiatrist, Dr G, dated 27 May 2016, wherein Dr G reported:

   [The father] has been under my care for the past seven years. I have reviewed his mental state on a regular basis over that time. While [the father] was suffering from psychotic illness for several years up to 2006, it would appear that he has been essentially well and symptom free since that time.

   [The father] receives treatment with both an antipsychotic medication, [named] daily and a mood stabiliser, [named] daily. He appears to be totally compliant in his use of these two medications.
   There is nothing in [the father’s] current or recent presentations to suggest that he is, or has been unwell for some ten years, and that he is in any way incapable of caring for his daughter, the child.
   Neither do I believe that the medication that [the father] takes, that keeps him well, is in any way likely to interfere with his provision of good care for his daughter.

   I plan to continue to review [the father] on a regular ongoing basis, as I have for the past seven years.

3. Dr H’s observations of the father’s presentation were set out in his report:

   [The father] presented as a well dressed man wearing black trousers and a purple shirt. [The father] was neatly attired. He had an odd stare about him and appeared hesitant and uncertain in his manner and awkward. He wasn’t sure whether to walk into the office first or allow me to go first. [The father] seemed to have difficulty being able to assess social interchange comfortably. His speech was normal in tone and volume. There was no abnormality of perception. I wasn’t able to detect any hallucinations or abnormalities in his responses. His affect was a little restricted but there was reactivity. There was a certain degree of remoteness and awkwardness in his emotional responses. His cognitive function was normal. His thoughts were logical and sequential.

   There was no thought disorder that I could detect. His content of thought was his concern and wish to be involved in his daughter’s life and his concerns for her. He appeared to have reasonable insight into his illness. He was quite clear that he had a condition that required treatment and that he was compliant with treatment. His judgement about how to respond to certain situations may however be of concern such as taking a child for a blood test for normal rough and tumble bruising may have been a concern.

4. Dr H saw the father and the child together. He observed that the child was cuddling her father and standing close to him and relaxed. When the child was handed over to the father there was no distress. Dr H observed that the father was awkward and hesitant in his way of interacting with the child but that she seemed quite happy and relaxed.

5. Asked to comment on the nature of the relationship between the father and the child, Dr H said:

   Despite the mental illness he has been well controlled and treated with medication and mental health follow-ups. He does work part-time but is primarily on a disability support pension. He is very focused on the child. He cares a great deal about her and I believe that he is very dedicated as a parent. The child has become the main focus in his life and he wants to be involved with her …

6. Dr H continued:

   However his ability to make social and interpersonal judgements is probably impaired from his schizoaffective disorder. He has been struggling to work out how to negotiate a very upsetting and conflictual separation. He does have some unregulated concerns about [the child’s] development but she is only 2 years old so it is quite normal for a child to have under developed language at this age. In addition the response to bruising and persistence of having blood tests for bruising is inappropriate.

   These instances probably shows his difficulty making judgements and dealing with uncertainty. I don’t believe he has wanted to harm [the child] or harm the mother. His fear of losing [the child] is the underlying issue. Overall [the child] does have a strong attachment to him. He cares about her and I believe does want to provide for her. I don’t believe he would intentionally place [the child] at an unacceptable risk. I believe overall he is quite capable of providing for [the child] but does struggle with sophisticated thinking and dealing with complex interpersonal situations.

7. In relation to the implications of the father’s illness on his parenting ability, Dr H said:

   Whilst the medication controls his acute psychotic symptoms such as hallucinations and delusions, medication such as antipsychotic medication does not control or stop the social and interpersonal deficits that accompany a schizoaffective disorder. Although the prognosis with his condition is good in relation to remaining stable and not psychotic it doesn’t change his ability to function interpersonally and he is likely to continue to struggle with this. This also has implications for his parenting and being able to understand and deal with the sophisticated issues that often confront children.

8. Dr H however, concluded that the father is quite capable of providing care for the child at a functional level. Dr H regarded the father’s arranging for the child to have speech therapy and blood tests as an example of poor judgment.

9. Dr H recommended that the child have accompanied contact (rather than supervised contact) until she is about four years of age. He recommended that the contact should occur twice a week for three to four hours. After the child reaches four years of age, the contact could occur during day time and be unsupervised. When the child reached school age, Dr H was of the view that she could transition to fortnightly weekend contact.

DISCUSSION

1. Counsel for the mother submitted that the dominant consideration was the need to ensure that the child was protected from physical or psychological harm arising from the consequences of the father’s illness.

2. That issue appears to have been foremost in the mind of Dr H when he framed his recommendations. The task here is to frame a regime that is not so restrictive as to inhibit the child from having and further developing a meaningful relationship with her father whilst ensuring that she is protected from the frailties in the father’s ability to care for her that Dr H has identified.

3. Insofar as the matters mandated to be considered in the process of decision making are relevant here, I accept the assessment of Dr H that the child has a stronger attachment to her mother than to her father but that she also has a strong attachment to her father. I also accept that the child has a secondary attachment to her maternal grandparents with whom she lives.

4. Neither parents can be criticised in relation to their participation in the child’s life. The father has taken the child to see a speech therapist and for a blood test because he had a genuine concern for her wellbeing. That decision was misguided and the father has acknowledged under oath that he should not have done so and will not do so again. Despite the suspension of the orders providing for the child to spend time with the father, the mother has made arrangements for their time to continue until the Court could hear the interim applications.

5. Unless orders are made in accordance with the mother’s proposals, there will be changes in the child’s circumstances. Those changes should not interrupt her current regime any more than is necessary. Currently the child attends pre-school on Monday and Wednesday from 8 am until 4.30 pm and on Friday from 8 am until 4 pm. She has a sleep between about 12.30 pm and 2.30 pm.

6. Dr H’s recommended regime of two four hour visits each week can easily be accommodated within the child’s routine.

7. The father does not accept that his time with the child, other than for the first two months, needs to be accompanied. However, in the event that the Court were to determine that this is necessary, he puts forward his mother, his three sisters and his brother-in-law as suitable people.

8. The mother submits that two of the father’s sisters have a visual impairment that would detract from their ability to assist the father. However, both these ladies are raising their own children. The father has ten nieces and nephews, so the child is one of 11 grandchildren of the paternal family.

9. The conditions of supervision, however described, must be tailored to meet the risk that is objectively posed to the child. I do not consider that the risks that have been identified warrant any more than Dr H’s suggested “accompanied” visits. I consider that an arrangement whereby the child spends time with her father in the company of members of his family will both protect her from risk and allow her relationship with her father to be nourished. Such an arrangement will also have the advantage that the child will be able to spend time with her grandparents, aunts and uncles and cousins and develop those very important relationships. There will also be the opportunity for the child to participate in religious occasions with the paternal family, as she now is able to do with the maternal family.

10. Whilst the orders will provide for one member of the father’s family to accompany him, nothing prevents other family members from being present.

11. Nothing in the evidence suggests that it is appropriate, at this time, for the time which the child spends with the father to be extended at this time beyond the three to four hours recommended by Dr H. That is a matter which can be considered at trial.

PARENTAL RESPONSIBILITY

1. The mother seeks an order that she have sole parental responsibility. The father opposes that application.

2. Parental responsibility is a significant matter for a child. It is a decision that requires the best interests of the child to be considered and is best made when all of the evidence is available and has been tested.

3. Nothing in the circumstances of this child suggests that there is any need to make a determination about parental responsibility on an interim basis.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 June 2016.

Associate:

Date:  6 June 2016