PADLEY & PADLEY

[2018] FamCA 283

FAMILY COURT OF AUSTRALIA

PADLEY & PADLEY [2018] FamCA 283

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Senior Registrar’s decision – Where the father sought to vary interim parenting orders to spend increased and unaccompanied time with the child – Where the child’s age makes it appropriate to reconsider what interim orders are in the best interests of the child – Orders made allowing the father to spend part of his time with the child unaccompanied.

Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Padley

RESPONDENT: Ms Padley

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners

FILE NUMBER: SYC 1219 of 2015

DATE DELIVERED: 2 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 24 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ginges

SOLICITOR FOR THE APPLICANT: Hal Ginges & Co.

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT:	Eleanor Murphy & Company, Solicitors
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Ng

Orders

1. Order 5 made on 6 June 2016 is discharged.

2. The time which the child spends with the father pursuant to Order 2 made on 6 June 2016 is conditional upon the father being accompanied by one of the following persons:

   (a)       the paternal grandmother

   (b)       Ms D Padley

   (c)       Mr E

   (d)       Ms F

   (e)       Ms I

   (f)       Ms J

   (g)       Ms K

   (h)       Mr L and

   (i)such other person as is agreed between the parties from time to time provided that such person provide an undertaking in the terms set out in Annexure “A” to these Orders

   for the first hour of all such periods.

Annexure A

FORM OF UNDERTAKING

1. I agree to accompany Mr Padley (“the father”) during periods when his daughter, X (the child)  is in his care.

2. I have read and understood the Orders made on 6 June 2016 and 10 November 2017 concerning the child.

3. On the occasions that I am to accompany the father, I undertake to:

   a.ensure that I am present when the child is in the father’s care for the first hour of such periods

   b.forthwith notify Ms Padley (“the mother”) in the event that the father does not comply with these Orders.

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 Padley & Padley 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 SYDNEY

FILE NUMBER: SYC 1219  of 2015

Mr Padley

Applicant

And

Ms Padley

Respondent

And

Independent Children’s Lawyer

Adams & Partners, Lawyers

REASONS FOR JUDGMENT

The proceedings

1. Mr Padley and Ms Padley are parties to proceedings in relation to parenting orders for their child, X (the child) born in 2013.  The child is now four years and nine months of age.

2. Regrettably, the parties have been engaged in litigation concerning their daughter for the past three years.  The present application is that of the father, for review of interim orders made by Senior Registrar Campbell on 10 November 2017.  Those Orders provided as follows:

   BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT

   1.That by consent and pending further order, orders are made in terms of handwritten minute signed by or on behalf of each party marked as Exhibit 3, set out herein:

   1.That Order 5 of the Orders made 6 June 2016 be discharged.

   2.That subject to Order 3, the time that the child spends with the father is conditional upon the father being accompanied by:

   a.        the paternal grandmother;

   b.         [Ms D Padley];

   c.         [Mr E];

   d.         [Ms F];

   e.         [Ms I];

   f.         [Ms J];

   g.         [Ms K];

   h.         [Mr L]; and

   i.such other person as is agreed between the parties from time to time provided that such person provide an undertaking in the terms set out in Annexure “A” to these Orders.

   3.That the father is not required to be accompanied by one or more of the persons specified in Order 2:

   a.Until 10 May 2018, for the last hour of each visit; and

   b.        Thereafter for the last two hours of each visit

   4.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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 these particulars are included in these orders.

   IT IS ORDERED THAT:

   2.Subject to Order 1 to 4 above the father’s Application in a Case is dismissed.

   AND THE COURT NOTES

   A:The parties agree that they will attempt to be flexible about the time whenever possible so as to facilitate the child’s involvement in as many school, pre-school, family and other social events as possible.  This may involve changing the days and times and/or providing additional time than as set out in these orders.

   Annexure A

   FORM OF UNDERTAKING

   1.I agree to accompany [Mr Padley] (“the father”) during periods when his daughter, [the child] is in his care.

   2.I have read and understood the Orders made on 6 June 2016 and 10 November 2017 concerning [the child]

   3.On the occasions that I am to accompany the father, I undertake to:

   a.Ensure that I am present when [the child] is in the father’s care except for the last hour until 10 May 2018 and thereafter for the last 2 hours.

   b.Forthwith notify [Ms Padley] (“the mother”) in the event that the father does not comply with these Orders.

1. The Outline of Case document prepared on behalf of the father stated that he seeks the following interim orders:

   1.That the requirement for accompaniment (order 5 of Rees J orders of 6 June 2016) be vacated or revoked;

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

   a.Commencing Thursday 26 April 2018, alternate Thursdays, 9am – 1pm;

   b.Commencing Friday, 4 May 2017, alternate Fridays
   3pm – 8pm

   c.        Every Sunday 9am to 5pm.

   I assume that the date 4 May 2017 in paragraph 2(b) should be 4 May 2018.

2. The mother sought a dismissal of the father’s Application in a Case.  Alternatively, she sought to discharge Order 3 of 6 June 2016 so as to vary the handover point to M Pre-School.  I was informed at a late stage in the interim hearing on 24 April 2018 that the parties had reached agreement in relation to the changeover point but I was not told of the details.  Accordingly, I can make no order in relation to the handover point.

Background

1. The parties commenced a relationship in September 2008 and began to live together in November 2010.  They married in 2011 and separated on 17 October 2014.  On that date, the mother left the former matrimonial home and took the child to live with the maternal grandparents.

2. Between October 2014 and June 2015 the father and the child spent time together in the presence of members of the maternal family.  On 14 August 2015 the Federal Circuit Court made orders that the child spend time with the father on three occasions per week on an unsupervised basis.  These orders were suspended on 26 November 2015 and sole parental responsibility was granted to the mother.  The father appealed against these orders by way of a Notice filed on 21 December 2015.

3. On 27 November 2015 the parties and the child were interviewed by a psychiatrist, Dr H.  His report dated 18 February 2016 was released to the parties on the same day.  This report was thus prepared a considerable time ago, when the child was about two and a half years.

4. In May 2016 the appeal was allowed by consent and the matter remitted for

   
   

   re-hearing to the Family Court of Australia.  Interim orders were made which suspended all existing orders that the child spend time with the father.  These orders provided further that any time which the child would spend with the father should be at the sole discretion of the mother.

5. On 6 June 2016 interim orders were made, paragraphs 2 and 4 of which provided as follows:

   (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

   …

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

1. These interim orders substantially followed the recommendations of

   
   

   Dr H.  In his report of 18 February 2016 Dr H opined as follows:

   I recommend that there be regular contact with the father.  I don’t believe the father would place [the child] at an unacceptable risk.  However until [the child] is able to communicate I would recommend that there be accompanied contact (rather than supervised contact) until the child is perhaps four years of age twice a week for 3-4 hours.  Then [the child] could have daytime unsupervised contact.  When [the child] reaches school age I believe that the father could transition to fortnightly weekend contact.

2. It was common ground that the father suffers from a mental illness, which Dr H identified as schizoaffective disorder.  In relation to the father’s mental health, Dr H reported as follows:

   [Mr Padley] didn’t seem to have any mental health problems until 2003 at the age of 27 or 28.  His personality development had been normal.  He had normal early stability with his early stable life with his family.  He was a high achiever at school and probably was developing reasonably well into his 20’s.

   Although it is difficult in retrospect it is most likely that there was no personality disturbance although I don’t have any corroboration for this.  In the context of major mental illness personality assessment can be quite difficult.  In 2003 he developed a psychosis.  He has had four admissions to hospital, 2003, 2004, 2005 and 2006.  Since 2006 he has been stable and taking medication.  It was clear that he had psychosis and that he was diagnosed initially with bi-polar disorder and then this was later modified to schizoaffective disorder.

   Schizoaffective disorder is a label that is used for a condition that is better prognosis that schizophrenia but where there is some acknowledgment of some social and perhaps personality decline.  Schizoaffective disorder suggests that there are schizoid features or difficulties with social judgment and problems in being able to form relationships.  The affective elements of the illness are consistent with manic symptoms with mood elevation.  This is probably consistent with [Mr Padley].  …

3. A full day mediation is scheduled on 5 June 2018.  Counsel for the mother urged that the court not entertain the application of the father, in light of this imminent mediation.  As properly submitted on behalf of the father, however, the parties may not reach any agreement at this mediation.

4. It seems that Campbell SR concluded that the father had not demonstrated a sufficient change in circumstances, since the interim parenting orders were made by Rees J on 6 June 2016, to warrant reconsideration of interim parenting arrangements.  Accordingly I will now turn to that issue, as defined in the

   
   

   well-known authority Rice and Asplund (1979) FLC 90-725.

Consideration

1. In my view it is significant that the child was two years and eleven months old at the time of the orders of 6 June 2016 and that she is now aged four years and nine months.  She is thus at a more advanced stage in her development and at the age when Dr H contemplated the introduction of unsupervised time with the father.  These matters persuade me that it is now appropriate to reconsider what interim parenting orders are in the best interests of the child.  I would note that a fresh interim hearing now will not mean that she is subjected to interviews and assessments by an expert.

2. In so far as I am aware, the Order of 26 November 2015 which granted sole parental responsibility for the child to the mother remains on foot.  Accordingly I am not required to consider whether it is then the child’s best interests, and reasonably practicable, that she spend equal or substantial and significant time with each parent.  In any event, the father seeks no such orders.  To his credit, he seeks only orders that the child spend limited day only periods in his care.

3. Essentially two issues were raised by the parties at the interim hearing.  Firstly, the father sought to extend the child’s time with him from 3.00 pm until 7.00 pm to 3.00 pm until 8.00 pm on Fridays and from 9.00 am until 1.00 pm to 9.00 am until 5.00 pm on Sundays.  Secondly, the father sought a removal of all requirements for “accompaniment” during the child’s time with him.

4. The ICL submitted that there is no necessity for “accompaniment” of all the child’s time with the father.  The ICL suggested that the child and the father be “accompanied” for “the first couple of hours and longer if the accompanying person deems necessary.”

5. Dr H expressed these opinions in relation to the impact of the father’s mental illness on his parental capacity:

   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 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 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.

6. Dr H opined further:

   [Mr Padley] does have a disability in that he suffers from his chronic mental condition which impacts on his ability to function at a sophisticated interpersonal level.  However he is quite capable of functioning and providing care at a functional level.  The main issue is being able to use his judgment regarding subtleties such as impulse control and delaying and monitoring.  For example being able to judge whether a child’s language is appropriate and being able to wait for her growth.  The example of his poor judgment include arranging for the child to have physiotherapy for mobility, then speech therapy and blood tests with regard to bruising.

1. I see no reason at all to doubt the father’s evidence that he has seen his psychiatrist, Dr G regularly since February 2009.  Similarly, I have no reason to doubt his evidence that he takes his prescribed medication on a regular basis.

2. I accept the evidence of the father, to the effect that the “accompaniment” requirement has caused inconvenience to members of his family who have taken on this role.  Despite this inconvenience, the father’s family has facilitated the child’s time with him for a period approaching two years.

3. I accept also that the father’s family holds a regular dinner each Friday night and that he regards this event as an important part of the child’s heritage.  The father deposed that he must leave the dinner after the first course in order to return the child to the mother at 7.00 pm.

4. The ICL did not support an extension of the child’s time with the father at this stage.  It seemed to be foreshadowed that the parties would seek an updated report from Dr H in the reasonably immediate future, and, in my view, an extension of time would best await the availability of this additional expert evidence.

5. I accept the mother’s evidence that a weekly conclusion of time with the father at 8.00 pm would be a tiring experience for the child.  For that reason also, I am not prepared to extend time on Friday evenings.  I would have taken a different view in relation to a one-off special occasion.

6. The parents and the ICL have agreed to a scaling back of the “accompaniment” requirement, which has been implemented since the orders of 10 November 2017.  The father deposed that the child has spent time alone with him on forty occasions since the orders of 10 November 2017 and that there have been no concerning incidents.  I accept this evidence.

7. I am persuaded that a further, but not total, removal of the requirement for “accompaniment” is now appropriate and in the best interests of the child.  I am of the view that they should have greater freedom do enjoyable activities and participate in the events of daily life together.

8. It seems to me that accompaniment for the first hour of the child’s time with the father would be sufficient to ensure that there is no likelihood of any difficulties on that particular day.  I am prepared to assume that all of the people listed in the Orders of 10 November 2017 would remain with the father and the child if they perceived that there was any reason to do so in the child’s best interests.  I will make orders accordingly.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 2 May 2018.

Associate: 

Date:  2 May 2018