Parton and Lam

[2011] FamCA 471

FAMILY COURT OF AUSTRALIA

PARTON & LAM [2011] FamCA 471

FAMILY LAW – CHILDREN – Consent orders proposed by parties not accepted – Independent children’s lawyer opposed parties’ consent orders – Child safety concerns – Limited day time with mother ordered – Safety measures ordered – Independent children’s lawyer to provide reasons and material to Child and Youth Mental Health Service and Department of Communities (Child Safety)

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Parton

RESPONDENT: Ms Lam

INDEPENDENT CHILDREN’S LAWYER: Ms Dart

FILE NUMBER: BRC 9966 of 2007

DATE DELIVERED: 10 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 10 June 2011

REPRESENTATION  

THE APPLICANT: Ms Ewart, Duty Solicitor, for the father (the father in person initially)

THE RESPONDENT: In person (until her departure from the courtroom)

THE INDEPENDENT CHILDREN’S LAWYER Ms Dart

Orders

IT IS ORDERED

1. In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

1. The original minute of orders be placed and kept on the Court file.

2. Pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Annexure A

1. That all previous Orders be discharged.

2. That the child, B, born … 2002, live with the father.

3. That the child spend time with the mother on each Saturday between 10am and 5pm.

4. That changeover on those days be at Suburb C Railway Station unless otherwise agreed between the parties.

Telephone communication

1. That the parents do all acts and things necessary to ensure the child has access to and is able to operate a mobile telephone and/or a landline during all periods when the child is in the mother’s care.

2. That the child be at liberty to telephone either parent at all reasonable times and the parties shall allow the child to do this privately.

3. That the father telephone the child at least once each day during periods when the child is in the mother’s care. 

Communication

1. That the father do all acts and things necessary to ensure that the child is known to the mother’s neighbours and will ask them to contact him in the event of an emergency concerning the child.

2. That the father arrange for a suitably qualified professional person to be arranged through the Child and Youth Mental Health Service to educate the child in an age appropriate manner about some of the risks/concerns the child needs to be conscious of whilst in the care of her mother and what she should do if she identifies such concerns.

3. That the mother keeps the father informed of her plans for the child’s time with her including any plans to travel and/or visit family and friends.

Counselling

1. That the parents do all acts and things necessary to facilitate the child’s ongoing attendance with the Child and Youth Mental Health Service for as long as therapeutically indicated.

Other

1. That the independent children’s lawyer be granted leave to publish to the Department of Communities (Child Safety) and the Child and Youth Mental Health Service copies of:

   a.      Transcript of proceedings 10 June 2011 and the Orders made by and the Reasons for Judgment delivered by the Honourable Justice O’Reilly on 10 June 2011;

   b.      Child and Parents Issues Assessment prepared by Ms D, Family Consultant dated 6 April 2010;

   c.      Family Report prepared by Ms D, Family Consultant dated 3 May 2011; and

   d.      Psychiatric Assessments of the parties prepared by Dr E dated 24 December 2010.

2. It is requested that the Department of Communities (Child Safety), within the confines of their obligations with respect to confidentiality, advise the father of any concerns regarding the mother that may arise during their ongoing intervention with her.

3. That the independent children’s lawyer be discharged upon provision of the documents to Department of Communities (Child Safety) and the Child and Youth Mental Health Service outlined in paragraph 12.

4. That all outstanding applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9966 of 2007

Mr Parton

Applicant

And

Ms Lam

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the child B born in 2002 nearly 9 years old. 

2. The proceedings were instituted by the father on 26 July 2007. The initiating application sought only a recovery order.  Throughout the proceedings however I have indicated that unless and until the father files an amended initiating application seeking further substantive parenting orders I would treat his application nonetheless as such, having regard to the circumstance that he is a litigant in person and thus has had limited opportunity to formulate specific orders. 

3. The mother by response to the initiating application filed 3 August 2007 sought interim orders and ultimately final orders in effect that the child live with her and spend time with the father. 

4. Despite opportunity and directions, the parties consistently have failed to file ordered material such that when the matter came before me on 18 November 2010 as a Day 1 matter I was minded simply to dismiss the proceedings for non compliance with Court ordered directions.  However I was persuaded on that occasion by Ms Dart, the independent children’s lawyer, not to do so having regard to extreme safety concerns concerning the child.

5. The result was that on 18 November 2010 I made an interim order that the child live with the father and spend time with the mother on each Saturday between 10 am and 5 pm with changeover at Suburb C Railway Station unless otherwise agreed between the parties, that is, unless the changeover venue was otherwise agreed between the parties, and listed the matter by way of continuation today for consideration of reports which I ordered in relation to psychiatric assessment of the mother and the father and a family report by Ms D, the family consultant, the matter being listed for consideration of either further interim orders, or final orders, as appears by order 6 of the orders made on 18 November 2010.

6. Today the mother and the father presented proposed consent final orders in terms of what they have had in place for some time, despite the orders made on 18 November 2010 for limited time with the mother.  The orders proposed by consent by the mother and the father today were that the child live with the father and spend time with the mother from 10 am Saturday until 4 pm Sunday for three weekends out of four in a four week cycle, half school holidays, time at Easter, Christmas and special days as may be agreed and that generally the weekend time referred to be either as formulated or as otherwise agreed. 

7. The difficulty with that proposed consent order by the parties is that it flies in the face of Ms D’s recommendations, and indeed the opinion of Dr E, psychiatrist, and plainly enough thus had no support from Ms Dart, who proposed that the child live with the father and spend day time with the mother on Saturdays between 10 am and 5 pm.  It is convenient I think to set out the conclusion to Dr E’s report headed Opinion. 

   48.The father presents as the more capable parent at this stage.  The mother’s psychiatric history is of some significance but there are some positive aspects to her presentation which suggest that her circumstances may be improving.  She maintains that she has not been involved in substance abuse for a year, her self harming has ceased, she has insight into her condition and would welcome a return to therapy with [Dr F].  None the less she has very significant problems and it is improbable that dramatic changes are going to occur in the short term.

   49.The father similarly has some attributes which may affect his parenting.  He has a criminal history and his encouraging the child to hit others at school is obviously contrary to her interests.

   50.Based on my assessment I would recommend that at this stage the child doesn’t have overnight contact but that there should be a gradual return to overnight contact with the mother if she continues to engage with treatment.  I would also recommend that the child continue her counselling with the Child Youth Mental Health Service. 

8. Ms D’s report under the heading Evaluation referred to the agreement reached between the parties to which I have referred observing that, despite the orders I made on 18 November 2010, they already have adopted their own plan.  Ms D said that she was not concerned that the child was spending time with her mother per se, but the following, at 57:

   57....Of most concern to me is [Mr Parton], in particular, and his lack of or unwillingness to consider potential risks with respect to this arrangement and proactively implement protective measures. 

9. I would refer also to the following paragraphs of Ms D’s report:

   58.Both parents, in my opinion, have dubious histories that are not conducive to optimal parenting.  The Department has assessed however that [Mr Parton], out of the two parents, is willing and better able to meet the basic care and protective needs of the child.  Based on information available to me, I would agree that out of the two parents, this does appear to be the case, although I do have my concerns.

   …

   61.Furthermore, given his own surmise of their parental relationship at the time of the Children and Parents Issues Assessment, [Mr Parton] presents as being overly optimistic about their capacity to effectively co-parent. [Mr Parton] had previously described himself and [Ms Lam] as being “stubborn” and gave the impression that when this was the case, effective communication was not always the outcome.  He described what appeared to be a pattern of conflict and co-operation dependent upon their respective behaviours. 

   62.In my mind, the aforementioned appears to have been overlooked when reaching the agreed arrangement; and it raises concerns about what the parents will do if they find themselves in a situation where they do not agree about the child. For example, if [Mr Parton] refuses time because he perceives that [Ms Lam] is not in the position to spend time with [the child], and [Ms Lam] does not agree. 

   63.The parents seemed to have reached an agreement at a time of co-operation but failed to consider what they will do in a time of conflict.  It seems both parents may have chosen expediting the conclusion of these legal proceedings over carefully considering the best pathway forward for the child. 

   …

   65.[Ms Lam] has an extensive child protection history.  There have been concerns about her mental health status and her capacity to appropriately parent her children as a result of this and her history of drug misuse.  To her credit, [Ms Lam] accepts her diagnosis of Borderline Personality Disorder and appears to have some insight into how this affects her and what she needs to do to manage the symptoms.  However, her insight does not appear to go beyond this as she seems to minimise the potential affects her symptoms may have upon her daughter.

   …

   68.The risk to the child spending increased time with her mother is that there is a level of unpredictability regarding [Ms Lam’s] capacity to appropriately meet the child’s needs, particularly her emotional needs, given [Ms Lam’s] mental health status.  There will potentially be a lack of certainty and emotional security within [Ms Lam’s] home environment, or at minimum it will waver.  There is a risk that the child will develop an increased sense of responsibility for her mother’s emotional wellbeing and stability; and in affect assume a parental role, at least, emotionally.

   …

   70.In worse case scenario, the child may be exposed to the more traumatic of [Ms Lam’s] symptoms and observe her mother’s suicidal ideation tendencies that she has previously exhibited.  Whilst, there are no reports of any recent suicide attempts or self harming efforts, the unpredictable nature of [Ms Lam’s] diagnosis of Borderline Personality Disorder, in my experience, does not give one confidence about her capacity to act protectively and thus guarantee [the child’s] safety especially on those occasions when she may be experiencing a “tough week.” 

10. Ms D’s recommendations at pars 74 to 76, accordingly, are:

    74.It is my recommendation that [the child] live with her father and spend time with her mother each Saturday from 10 am to 5 pm.

    75.Given that the parents have reported that they will not comply with an order that is not consistent with their agreed parenting arrangement, I would recommend that my report be released to the Department of Child Safety in addition to any determination that this Court makes.

    76.I also recommend that the Department of Child Safety advise [Mr Parton] of any concerns that may arise during their ongoing intervention with [Ms Lam] so that he can hopefully act accordingly to protect [the child].

11. I am not satisfied, in light of the evidence, and in particular Dr E’s and Ms D’s opinions and recommendations that the consent orders proposed by the mother and the father are in the child’s best interests in that I am not satisfied that such orders will provide suitably for her safety and protection and I will therefore not make those orders. 

12. The mother, at an early stage of the proceedings, announced to the effect that she did not wish to participate further in them and left the courtroom. Transcript 10 June 2011 11/45-12/40:

    HER HONOUR:   All right.  Now, yesterday I had a case where two duty lawyers made themselves available, one for one side and one for the other.  Rather than having an adjournment to apply or to try to get legal representation, would you like an opportunity to speak to the duty lawyer this morning and see what the duty lawyer advises you?

    [MS LAM]:   Honestly I can’t, your Honour.  I need to be out of here by 11 o’clock because I have my first obstetric appointment at 12.15. 

    HER HONOUR:   Well, this case probably won’t be finished by 11 o’clock. 

    [MS LAM]:   Well, unfortunately I have to because I have to have blood tests done.  They have to be done today.  I was hoping that we would just come in and either you would make the order or you wouldn’t, and we would come back another time.

    HER HONOUR:   How could I possibly make the order when [Ms D] has said that she strongly recommends against it because of safety concerns?  Anyway - - -

    [MS LAM]:   Well, [Ms D] needs to come up with some evidence that my children have ever been harmed in my care.  Excuse me, your Honour, but I’m done. 

    HER HONOUR:   So are you leaving the bar table, are you?

    [MS LAM]:   Yes, I am.  I am completely done.  It doesn’t matter what you order or you don’t order. 

    HER HONOUR:   So are you saying that you don’t - - -

    [MS LAM]:   I am no longer a part of these proceedings.

    HER HONOUR:   [Ms Lam] - - -

    [MS LAM]:   Do what you .....

    HER HONOUR:   - - - I’m directing you to stay in the courtroom until I finish my sentence, please.  Are you saying in open court that you wish to withdraw from the proceedings and not continue the proceedings;  is that correct?

    [MS LAM]:   That’s correct, your Honour. 

    HER HONOUR:   Thank you.  That is on the record. 

13. In relation to the father, a procedural question arose as to whether in light of the father’s opposition to an order that the child spend only Saturday time with the mother, I properly could proceed to finalisation of the proceedings today or necessarily would have to adjourn them to allow the father the opportunity if he wished to file trial affidavits and to cross examine Dr E and Ms D.  As the father is a litigant in person I invited the assistance for him of a duty lawyer and in consequence Ms Ewart, solicitor, in her capacity as duty lawyer conferred with the father during a brief standing down of the matter.

14. Upon resumption Ms Ewart was able to state from the Bar table the father’s clear instructions that he did not wish to put on any affidavit material nor cross examine Dr E or Ms D and that he wished the matter to be finalised today such that, whilst he did not agree with and indeed opposed the order that I indicated I would make if the matter were to be finalised today, namely that the child spend only Saturday time with the mother, and other orders proposed in a draft by Ms Dart, he did not wish to avail himself of any further procedural steps in the matter.

15. It seems to me that in the less adversarial trial process it is open to me thus to continue today to make a final parenting order without unnecessarily adjourning the matter for further trial directions and further material.  I am satisfied that there is sufficient material before me for that purpose, in particular the two expert reports which I have referred. 

16. I turn now to the question of the child’s best interests. 

17. I am obliged pursuant to the relevant statute, the Family Law Act 1975 (Cth), to determine the child’s best interests by considering the s 60CC factors.  However, as is well understood, whilst that is a statutory mandate it is only the relevant matters in s 60CC which are required to be considered.

18. Thus, it is the matter of the child’s safety to which I immediately now turn.

19. It is not in issue that the child should live with the father. That much is proposed by the parties and supported by Ms Dart, Ms D and Dr E.  

20. I am satisfied that the safety concerns raised by the two experts in the matter would be met by the child spending day time only with the mother on Saturdays between 10 am and 5 pm. 

21. In relation to the benefit to the child of having a meaningful relationship with both of her parents, it is well understood that a balance must be struck between opportunity prospectively for a meaningful relationship to be continued or developed and safety concerns.  There is no indication on the material that the child’s already meaningful relationship with the mother would be diminished or interfered with by spending Saturday day time only with her. 

22. The child is too young to express meaningful views. 

23. The matter of her relationship with other persons is not of considerable weight at this stage. 

24. Both of her parents are willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent. 

25. There is not in the case any need to consider the likely effect of any changes in the child’s circumstances, including separation from either parent.  There is, as the father pointed out, the circumstance that since 18 November 2010, despite the interim orders made on that day for Saturday day time only, the child has been spending overnight time with the mother, and the father from the Bar table stated that if he were to not let the child have her way in doing that she would get upset and cry. Now this of course comes into the category of a likely effect of change from the regime that the parties themselves have implemented including overnight time.  However, as I explained to the father during submissions  and argument, a child’s safety is more important than tears for not getting his or her own way in a particular circumstance, and it is part of parenting to make decisions on behalf of a child not to let the child make the decisions. 

26. The matter of practical difficulty and expense did not arise. 

27. The capacity of each of the parents to provide for the child’s needs, including emotional and intellectual needs, was not canvassed at great length. 

28. Her maturity, sex, lifestyle, and background was not canvassed at great length, having regard to the concentration on safety issues. 

1. Both the child’s parents want to have and accept the responsibilities of parenthood, however each has deficiencies as described in the two experts’ reports. 

2. There are no current family violence allegations or orders. 

3. It is preferable that I make the order which would be least likely to lead to the institution of further proceedings in relation to the child. 

4. Having regard to the evidence, the submissions of the father and of Ms Dart, the mother, as I said, having withdrawn from the proceedings, and the statutory matters I am required to consider, I am satisfied that the orders proposed by Ms Dart are in the child’s best interests, as demonstrated by the transcript of argument in relation to the formulation of the orders, and I will make those orders.  They are initialled by me and will be attached to the record of proceedings. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 10 June 2011.

Associate: 

Date:  20 June 2011