PARDOE & FILLIPE

[2020] FCCA 1001

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARDOE & FILLIPE [2020] FCCA 1001

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged nine years –child’s parents have been separated for many years – child has lived with mother in Adelaide – father lives in Perth – mother has suffered two episodes of mental illness – father seeks change of living arrangements – assessment of risk – best interests – nature of interim hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 68LA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4

Applicant: MR PARDOE

Respondent: MS FILLIPE

File Number: ADC 4831 of 2018

Judgment of: Judge Brown

Hearing date: 22 April 2020

Date of Last Submission: 22 April 2020

Delivered at: Adelaide

Delivered on: 30 April 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Mr Boehm

Solicitors for the Respondent: Women's Legal Service

Counsel for the Independent Children's Lawyer: Mr Seymour

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

1. The interim application filed 17 March 2020 be dismissed.

2. Further consideration of the matter is adjourned to 23 June 2020 at 9.30am for directions and possibly to determine mid-year school holiday arrangements and, if the matter remains in dispute, to reappoint a further final hearing date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4831 of 2018

MR PARDOE

Applicant

And

MS FILLIPE

Respondent

REASONS FOR JUDGMENT

Background

1. Mr Pardoe “the father” and Ms Fillipe “the mother” are the parents of X born in 2010.  These proceedings are concerned with interim or provisional arrangements for X’s care, particularly whether a long standing situation, in which he has lived with his mother in Adelaide should be changed and he should move to Perth to live with his father, because of a recently arising problem related to his mother’s mental health.

2. The parties began a relationship in 2004 and separated in early 2013, when they were living in Darwin.  However, they agreed to move together, as a family, to Perth.  Mr Pardoe continues to live in Perth, where he is employed on a fly in/fly out basis, four weeks on/two weeks off, at Employer A near Town B.  He is actively seeking work, in the Perth suburban area.  He is re-partnered. 

3. Ms Fillipe and X left Perth and moved to live in Adelaide in 2015.  Ms Fillipe’s brother, Mr C and his family also live in Adelaide.  Other aspects of Ms Fillipe’s family, particularly her mother, live in Town D, NSW.  Recently, the mother returned to Town D because she was feeling stressed.  As a consequence, X lived with his Uncle Mr C, in Adelaide, for a time.  He has now returned to the care of his mother.

4. X’s move to Adelaide was controversial, so far as Mr Pardoe was concerned.  He began proceedings in the Family Court of Western Australia in late 2018.  These earlier proceedings largely focussed on concerns that X might be taken to the UK (Ms Fillipe was born in the UK) and arrangements for X to spend time with his dad, in Western Australia, during school holidays.

5. Ms Fillipe has previously been employed as a labourer.  She remains single.  In late December 2018, issues arose regarding the regularity of X’s attendance at school, in Adelaide and Ms Fillipe’s mental health.  It is the father’s case that Ms Fillipe’s mental health issues are long standing and have not been properly addressed.

6. Against this background, on 15 June 2019, the father sought that the court direct Ms Fillipe to undergo an urgent psychiatric assessment to ascertain her capacity to parent X.  He had had his own experience of Ms Fillipe’s behaviour, when she had delivered X to him, to spend time during the preceding summer holiday.  He described her behaviour as bizarre and potentially dangerous, not only to herself but potentially X. 

7. As a consequence, arrangements were made, by her family, for Ms Fillipe to travel to Town D, NSW from Perth, so that she could receive support there and appropriate treatment.  In Town D, she was hospitalised.  The relevant discharge summary indicated that the mother was suffering “brief reactive psychosis, brief psychotic disorder in the context of sleeplessness and stress.”

8. Mr Pardoe does not necessarily accept that the December 2018 incident of mental illness, exhibited by Ms Fillipe, can be regarded as being isolated.  It is his position that Ms Fillipe has a longstanding history of depression and anxiety, which is not particularly well managed and, from time to time, has resulted in her displaying anger towards X, which has culminated in her physically striking the child. 

The family report

1. It was in this context that a family report was ordered to be prepared.  The report was prepared by Ms E, a family consultant, who holds professional qualifications in both psychology and social work.  She interviewed each of the parties and observed them with X, in Adelaide, in mid-November of 2019. 

2. At the time of the report, Mr Pardoe was representing himself.  On a final basis he sought orders that X live with him in Western Australia.  On the other hand, Ms Fillipe sought orders that would see X living with her, in Adelaide, and spending approximately half of each school holiday in Western Australia, with his father.  She also sought an order that would enable her to take X to the United Kingdom for a holiday.

3. In interview with Ms E, X reported positively about living with his mother and spending time with his father.  The child’s presentation, when observed with each of his parents, was relaxed and content.  Mr Pardoe was described as being sensitive and responsive when playing with X. 

4. Significantly, Ms E also spoke with the authorities at X’s school, who reported that the child was performing well and his attendances, during 2019, had been close to perfect.  Earlier, in X’s school career, he had apparently displayed great difficulty in separating from his mother. 

5. In all these circumstances, Ms E was not of the view that there were sufficient concerns to justify any change of living arrangements for X.  At the same time, she considered that X’s time with his father should be “maximised as much as possible given their geographical distance”. 

6. Overall, Ms E considered that the parents had very different parenting styles, but each had much to offer X.  Issues remained regarding the cost of X’s travel between Adelaide and Perth and how it should be distributed between the parties. 

Other issues

1. In mid-June of 2019, the mother’s solicitor provided a psychiatric report from Dr F, who is a community based psychiatrist employed by SA Health.  Dr F reported that Ms Fillipe had attended all her scheduled appointments and had been compliant with her medication. 

2. At this stage, it was Dr F’s report that Ms Fillipe had been symptom free for six months and her mental health was stable.  As a consequence, she reported as follows:

   “From my contacts with Ms Fillipe, I am not aware of any current risks so far as her ability to parent her son.  However, given that she has experienced an episode of psychosis when under a combination of considerable stress and sleep deprivation, means that she has a higher risk of a similar episode occurring in the future than someone who has never experienced an episode of psychosis.  Ms Fillipe understands this.”

3. Around about the same time, Ms Fillipe provided X’s mid-year report, for the 2019 school year, from G School.  This indicated two days of school absences, and was positive so far as X’s school performance was concerned. 

4. Against this background, the parties were able to agree arrangements for X to spend time with his father, during the end of year 2019 school holiday and were hopeful that they would be able to agree on a final order for X’s care so that there would be no need for a final hearing, which had been provisionally listed for 12 March 2020. 

5. However, Ms Fillipe has experienced a further incident of psychiatric illness, which has led to the current proceedings and the deferral of the trial.  The focus in the current proceedings is on the degree of risk, arising for X, from his mother’s psychiatric problems and whether these are sufficiently serious to justify a very major change in X’s long standing living arrangements.

The current applications

1. On 20 March 2020, Mr Pardoe filed an application in a case in which he sought that he have sole parental responsibility for X and that the child relocate, to Western Australia, and live with him, from the start of the term one school holiday period. 

2. In support of his application, Mr Pardoe deposed that he had been contacted by Ms Fillipe’s brother, in early February 2020 and been advised that Ms Fillipe was “having a break down and needed to obtain psychiatric help.” 

3. In this context, Ms Fillipe had returned to her mother’s home in Town D, whilst X remained in the care of Ms Fillipe’s brother, Mr C.  For understandable reasons, Mr Pardoe was greatly concerned at this development but grateful that he had been candidly informed of it by Mr C.

4. Later, Mr Pardoe deposed that he had been informed by Mr C that Ms Fillipe had been involuntarily admitted to hospital in Town D.  This does not now appear to be the case.

5. Ms Fillipe responded to this application on 1 April 2020.  It is her position that her mental health issues have stabilised and therefore X should continue living with her, in Adelaide and spend regular and extended periods of time, in Western Australia, with his father.

6. In support of her application, she deposed that she had been feeling stressed during the latter part of 2019, and as a consequence, had been sleeping poorly.  In this context, she had sought assistance from her mother in Town D and at her mother’s suggestion decided to travel there. 

7. It was in this context that X had stayed with her brother, in Adelaide.  Essentially, Ms Fillipe disputed the extent of her alleged mental health indisposition and asserted that it was not as serious as Mr Pardoe had maintained.  Rather, there had been some crossed wires in the communications between Mr C, on the one hand and Mr Pardoe, on the other.

8. In this context, Dr F was again asked to provide a report detailing her involvement with Ms Fillipe.  In this context under the heading 07/02/2020: second episode psychosis, Dr F reported as follows:

   “Ms Fillipe’s brother Mr C phoned saying she was relapsing – increasingly worried about X’s safety, thinking he was being sexually abused, didn’t take him to school for three days and wanting him to see a psychologist and move back to Perth.  X told his uncle he loves school and there were no problems.  I suggested she increase Olanzapine back to 10mg at night.  Ms Fillipe and her mother and her brother discussed options and Ms Fillipe flew to Town D to stay with her mother and step-father, whilst X stayed with his uncle Mr C and his family in Adelaide (X’s father agreeable to this arrangement).”

9. Thereafter, Ms Fillipe spent some time in Town D, where she saw a general medical practitioner and a psychologist.  Her psychotic symptoms apparently improved and she returned to Adelaide and resumed the care of X on 11 March 2020. 

10. The parents are not the only parties to the proceedings.  On 12 March 2020 an order was made that X be independently represented in the proceedings.  X’s representative is Mr Robert Seymour, an experienced family lawyer employed by the Legal Services Commission of South Australia.

11. Mr Seymour is to be regarded as a party of equal importance to Mr Pardoe and Ms Fillipe in the case. Pursuant to section 68LA of the Family Law Act, he is required to examine all the evidence available and advocate the position he thinks will best advance the interests of the child concerned.

12. The reason why Mr Seymour was appointed was because of the concerns raised by Mr Pardoe that Ms Fillipe was suffering a very serious level of psychiatric illness and therefore urgent steps needed to be taken to protect X.

13. At this stage, Mr Seymour has not had a chance to meet with X or talk with any individuals, such as his school teacher, who may have valuable insights to provide as to how X is doing in his life at the moment.  However, notwithstanding these deficits, Mr Seymour is not in favour of any radical changes in X’s living arrangements at present.

14. The mother’s return to Adelaide coincided with the beginning of the Covid19 pandemic.  As is well known, travel between the Australian states has been severely restricted.  In these circumstances, it was not possible for X to travel to Perth to spend time with his father. 

15. In her review of Ms Fillipe, dated 8 April 2020, Dr F described her as being euthymic and not to be demonstrating any signs of paranoia or delusional ideas.  Dr F further reported that the mother had resumed a low dose anti-psychotic in January of 2020, with the medication level increased in early February.

16. In these circumstances, Dr F reported as follows:

    “Since returning to Adelaide her psychotic symptoms have fully resolved and there is no mood lability.  It is clear that she has a vulnerability to affective psychosis and my advice to her is to continue with anti-psychotic medication long term.

    She has had life long held beliefs in natural therapies being preferable to prescription medications, which is why she was keen to cease anti-psychotic medication mid-2019 when she has been stable for a period of five months.  She is now insightful about her obvious vulnerability and agreeable to taking anti-psychotic medication long term.”

17. The case returned to court on 22 April 2020.  Mr Pardoe, who was previously represented by a solicitor in Town H, W.A., is now once again representing himself.  He did not present as a vindictive or un-insightful person or parent, who was seeking to make personal advantage out of Ms Fillipe’s problems.  However, he remains deeply concerned about X, whom he obviously loves very much. 

18. It is in this context that he wishes to transition to working close to his home, rather than flying in and out of Perth.  It is his case that he has a happy and stable home in Perth, which he shares with his current partner and children.  In the light of the recent developments, he has re-agitated his application for a change of living arrangements for X. 

19. In this context, he concedes that there are currently significant practical impediments to such an outcome, the chief of which remains that the border between Western Australia and South Australia remains closed and there are few, if any, commercial flights between Perth and Adelaide, at present.

20. It is Ms Fillipe’s position that she is fully recovered and her mental health is appropriately managed, through medication.  In addition, it is her case that she has appropriate social supports in Adelaide, where she and X have lived for a significant period of time.  As such, it is her case that there is no justification for X’s life to be subject to such a significant disruption, which must follow if the father’s proposal is implemented. 

The legal principles applicable

1. This is an interim hearing, which has been listed urgently.  It does not permit the extensive testing of evidence through cross examination.  It proceeds, in a truncated fashion, on the basis of a consideration of the affidavit material filed.  It is at final hearing that cross examination takes place and so the court has a more thorough and nuanced appreciation of all the evidence available.

2. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 (“the Act”).

3. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].

4. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

5. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

6. There are two primary considerations, which are as follows:

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

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

7. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). 

9. There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore. 

10. In this particular case, sub-paragraphs (b); (d); (e); and (f) of section 60CC(3) are relevant.  These subparagraphs deal with the following issues:

    ·The nature of the child’s relationship with each of his parents and significant others, including grandparents;

    ·The likely effect of any changes in the child’s circumstances, including the effects on the child being separated from a parent;

    ·The practical difficulties of a child spending time and communicating with a parent;

    ·The capacity of the child’s parents to provide for the child’s emotional and intellectual needs.

11. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

Discussion

1. At this stage, due to the urgent background to the parties’ competing applications, I am not in a position to conduct a full hearing, involving the taking of extensive evidence from each of the parties concerned and indeed from Ms E, which would include the testing of that evidence through cross-examination. 

2. As a consequence, at this stage, I am not in a position to make concluded findings of fact about many issues in controversy between the parties.  The main issue in dispute is the extent of Ms Fillipe’s ill health and whether it is likely to impact on her capacity to parent X to such an extent that his safety is likely to be placed at a significant degree of risk, if he remains in her care.

3. The court is frequently called upon to assess risk, against a background of incomplete evidence.  However the court is not in a position to defer any necessary risk assessment because of any deficiency in the evidence coming before it, including at the interim hearing stage. 

4. In Deiter & Deiter,[1] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

   [1]  See Deiter & Deiter [2011] FamCAFC 82

1. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

2. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [2]

   [2]  Slater & Light [2013] FamCAFC 4 at [37]

3. Given the evidence before me, I do not think that it would constitute an unacceptable risk, for X, if he remains in his mother’s care, at this stage.  That is not to say Mr Pardoe’s concerns should be dismissed.  I can readily understand why he is worried about X’s care, particularly given what occurred in 2019, when he personally was exposed to the mother’s bizarre behaviour, whilst she was visiting Perth.  This must have been very worrying indeed.

4. Doing the best I can, to piece together the medical evidence, particularly from Dr F, it seems to be the case that Ms Fillipe did indeed have a serious psychotic episode in early 2019.  It also seems to be the case that she is particularly susceptible to stress and this can lead to her sleep becoming disrupted and in time becoming very unwell indeed. 

5. The first episode appears to have been appropriately treated with medication.  In the circumstances and with the benefit of hindsight, it seems to have been imprudent for Ms Fillipe to have withdrawn herself from the anti-psychotic medication prescribed for her at this stage.  This led to her becoming unwell earlier this year. 

6. The evidence available to me indicates that Ms Fillipe did receive appropriate familial support from both her brother, in Adelaide, and her mother in Town D.  In this context, she has received appropriate medical treatment, which has included the re-prescription of anti-psychotic medication. 

7. It is the opinion of Dr F that Ms Fillipe will remain compliant with her medication in future and, as such, the chances of a further relapse are minimal.  I have no reason to disregard this evidence, at this stage, although I can also understand why Mr Pardoe would be guarded about it.

8. It is the father’s evidence, as yet untested through cross-examination, that the two recent incidents of mental instability, exhibited by Ms Fillipe are emblematic of deeper and more enduring mental health problems, of which he became aware during the parties’ relatively long relationship.  I am not in a position to dismiss his concerns, but remind myself that he is not medically qualified.

9. In my assessment, Ms Fillipe and her family did respond to the crisis earlier this year appropriately, and fortunately X has not been exposed to any harm.  In these circumstances, I am concerned that to uproot the child from his mother’s care would be a precipitate and disproportionate response to the risk identified in the case. 

10. Moreover, such an outcome may cause X to become confused and distressed.  As such, it is not an outcome which could currently be justified as being in X’s best interests.  As previously indicated, it is also not an outcome supported by the independent children’s lawyer.

11. As recently as November of 2019, the court appointed expert, Ms E considered that each of the parties were capable of fulfilling X’s emotional and educational needs, albeit in different ways.  My preliminary view is that the parties have quite different personalities and approaches to parenting.  Accordingly, in their different ways, it is probable they each have much to offer X as he grows up.

12. I have not been provided with any current evidence regarding the views of X’s teachers, at G School, regarding the impact of the mother’s view on X, which has been described by her brother and others as being delusional, regarding the child having been sexually abused.  No doubt, these are issues which Mr Seymour will look into.

13. Clearly, at this stage, X has a close and loving relationship with each of his parents.  These relationships can only be described as being meaningful.  However, at this stage, the evidence is incontrovertible that it is Ms Fillipe, who has discharged the vast majority of parenting for X, since the parents separated, a significant period of time ago.

14. In the absence of any ongoing concerns about X’s safety, this factor alone militates in favour of a continuation of the current care arrangements.  Essentially, at this stage, in my view, the change proposed by Mr Pardoe is too great and its outcome too uncertain to be justifiable at the present stage, particularly given Dr F’s views about the current stability in the mother’s mental health.

15. I acknowledge that there must always be some risk of relapse, in every case of mental illness.  However, in each recent episode of mental instability, Ms Fillipe has had the support of her brother and mother and they have ensured that both the mother and X have remained safe. 

16. The evidence of Dr F is that Ms Fillipe is now insightful into the consequences of ceasing her anti-psychotic medication, against medical advice and although she may not previously have approved of such interventions, Ms Fillipe now accepts that the taking of the medication must continue in her case in the longer term.

17. In all these circumstances, I am satisfied that to change X’s long standing living arrangements would be a response disproportionate to the degree of risk that Ms Fillipe may suffer a psychiatric relapse.  I am not persuaded that for X to remain living with his mother in Adelaide would represent an unacceptable risk for the court to take.

18. In addition, I am concerned that to disrupt the long standing arrangements for X has the potential to destabilise him emotionally and in terms of his educational arrangements.  It would be a very big step for him to go and live with his father in Perth and he may be unprepared emotionally for it.

19. At this stage, due to the Covid19 pandemic, there is considerable uncertainty about how individuals, including children subject to court orders, can travel across state borders.  To the parties’ credit, X seems to be able to communicate regularly, with his father, via Skype, when Mr Pardoe is able to do so.  He works extremely long hours, whilst he is in Town B. 

20. It would seem to me to be in X’s best interests that he be able to physically re-connect with his father as soon as is possible.  The best time for this would be the mid-year school holidays.  In these circumstances, I will adjourn the case until 23 June 2020 at 9.30am

21. I hope by this stage the implications of the pandemic for interstate travel will be clearer.  I also hope that the favourable circumstances prevailing between the parties, when Ms E’s report was first released, can be resumed and perhaps the parties themselves resolve the issue of how X can be parented in the future.

22. Accordingly, I propose to dismiss the interim proceedings in the case and adjourn the matter for further directions and possibly to determine mid-year school holiday arrangements to 23 June 2020 at 9.30am and, if the matter remains in dispute, at this stage, reappoint a further final hearing date.

23. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 30 April 2020