Peast and Peast - [2014] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEAST & PEAST

[2014] FCCA 66

Catchwords:
FAMILY LAW – Orders made three years ago – child very limited time with the mother – mother has no parental responsibility – mother issues application and seeks equal shared parental responsibility and significant time with the child – father objects on the basis of Rice & Asplund – changed circumstances established in relation to mental health issues – matter should proceed to further hearing.

Legislation:

Family Law Act 1975, ss.61C(1), 61DA(1), 65DAA

DL & W [2012] FLC 93-496
Mann & Prewett [2013] FMCAfam 314
Marsden & Winch [2010] 42 Fam LR 1
Rice & Asplund [1979] FLC 90-725

Applicant:

MS PEAST

Respondent:

MR PEAST

File Number:

MLC 2055 of 2009

Judgment of:

Judge Curtain

Hearing date:

13 December 2013

Date of Last Submission:

13 December 2013

Delivered at:

Melbourne

Delivered on:

31 January 2014

REPRESENTATION

Counsel for the Applicant:

Ms Pearson

Solicitors for the Applicant:

Altona Legal

Counsel for the Respondent:

Mr Arnold

Solicitors for the Respondent:

Marcou & Associates Pty Ltd

ORDERS

THE COURT ORDERS THAT:

The father’s interim orders sought in his Response filed 24 June, 2013 be dismissed.
All extant proceedings be listed before Judge O’Dwyer for Directions on 12 March, 2014 at 9.45 am in the Duty List.
Until further order the mother shall undertake regular observational care through her treating psychiatrist as advised by him and inform the father forthwith of any deterioration in her depression, anxiety or obsessive-compulsive disorder.
The parties’ costs be reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2055 of 2009

MS PEAST

Applicant

And

MR PEAST

Respondent

REASONS FOR JUDGMENT

Introduction

On 13 May, 2013 the mother, Ms Peast filed an Initiating Application seeking, inter alia, orders for equal shared parental responsibility and extended time with her daughter, X born (omitted) 2005 (“X”) as follows:
“4. The child spend time with the mother as follows:
(a) from 10.00am on Saturday morning until 6.00pm on Sunday evening for three (3) consecutive alternate weekends;
(b)thereafter from after school on Friday (or 5.00pm if a non-school day) until the commencement of school on Monday (or Tuesday if Monday is a non-school day),
(c)on Mother’s Day from 5:00pm on the preceding day to 5:00pm on Mother’s Day with the father to have the same time if Father’s Day falls at a time the said child is with the mother,
(d)for one week during each of the three mid year school term holidays at times to be agreed, and failing agreement:
(i)for the first week during each of the three mid year school term holidays during 2013 and each alternate year thereafter; and
(ii)for the second week during each of three mid year school term holidays during 2014 and each alternate year thereafter.
(e)For three weeks during the long summer/Christmas holidays at times to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peast and Peast

Details

AGLC: Peast and Peast [2014] FCCA 66
Case: [2014] FCCA 66
Decision Date: 31 January 2014

CaseChat Overview and Summary

In *Peast and Peast*, Judge Curtain of the Family Court of Australia considered an application by the father for interim orders concerning his daughter. The dispute centred on the mother's psychiatric condition and its impact on her capacity to care for the child. The father sought specific interim orders, which the court ultimately dismissed.

The primary legal issue before the court was whether there had been a prima facie case of changed circumstances, as required by *Marsden & Winch*, to warrant the father's requested interim orders. This involved assessing the mother's current psychiatric state, specifically her history of severe obsessive-compulsive disorder, anxiety, and depression, and the potential for relapse.

Judge Curtain placed significant weight on the unchallenged expert report of Dr G, who assessed the mother. While Dr G noted the mother presented as plausible and denied current symptomatology, he also acknowledged the possibility of her minimising her condition and the chronic, relapsing nature of obsessive-compulsive disorder. Consequently, Dr G recommended regular observational care by a treating psychiatrist to monitor for any deterioration, particularly given the potential for stressors to trigger her illness. The judge found this evidence established a prima facie case of changed circumstances.

The court ordered that the father's interim orders be dismissed. All extant proceedings were to be listed for directions before Judge O’Dwyer. Until further order, the mother was to undertake regular observational care through her treating psychiatrist and inform the father of any deterioration in her mental health. The parties' costs were reserved.

Orders

Orders of the court

THE COURT ORDERS THAT:

The father’s interim orders sought in his Response filed 24 June, 2013 be dismissed.

All extant proceedings be listed before Judge O’Dwyer for Directions on 12 March, 2014 at 9.45 am in the Duty List.

Until further order the mother shall undertake regular observational care through her treating psychiatrist as advised by him and inform the father forthwith of any deterioration in her depression, anxiety or obsessive-compulsive disorder.

The parties’ costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At page 9 of the report the doctor said as follows:“CONCLUSIONSMs Peast is a 37-year-old woman who describes an approximately five-year history of severe psychiatric illness, marked by obsessive-compulsive disorder, anxiety and depression, and a period of alcohol abuse.…Ms Peast’s illness over approximately five years was severe, relapsing, and requiring numerous and intensive treatments and interventions. Ms Peast reports to this examiner, and to her previous treating psychiatrist, that she eventually was able to overcome her residual symptoms with self-management skills developed during her illness. She now reports that she is reasonably well despite intermittent anxiety, and not requiring any counselling or medications. At interview, Ms Peast presents as a present and plausible historian, who denies any current psychiatric symptomatology.”…“There is no evidence of psychiatric illness at interview.” At page 10 of the report the doctor goes on to say the following:“Taking into account that this examiner can only accept the available history at face value, and given the overall history, whilst there must be some concerns regarding the possibility that Ms Peast was presenting a favourable image of herself because of concerns about the outcomes of the assessment, and even deliberately attempting to cover up and minimise any ongoing symptomatology, it is possible that an almost complete remission of her illnesses had occurred…This examiner notes the family report, dated 20th December 2010, from Dr M, and recognises that the recommendations made at that time occurred in the context of significant residual symptomology and the negative findings at examination……If one takes at face value Ms Peast’s reports about her current condition, and taking into account Dr S’s comments, there does not appear to be an absolute contraindication, from a psychiatric perspective, to a gradually increasing amount of contact with her daughter, notwithstanding the above concerns.Finally, it must be noted that more often than not, obsessive-compulsive disorder is a chronic and relapsing condition. Therefore, leaving aside the issue of whether or not there are in reality any significant current psychiatric symptoms, there is a significant possibility of relapse in the future…However, given the severe and prolonged symptomology from which she suffered for a number of years, up until only two or three years ago, it would be advisable that Ms Peast be under the regular observational care of a treating psychiatrist such as Dr S… The latter strategy is recommended also, in the context of the knowledge that there will inevitably be further stressors in Ms Peast’s life, and the psychiatric illness from which she has suffered can be trigged by stressors.” The author, Dr G was not required for cross-examination. He was an unchallenged expert witness and in the circumstances, I put significant weight on the contents of the report about the current state of the mother’s depression, anxiety and obsessive-compulsive disorder. I am satisfied that this evidence establishes a prima facie case of changed circumstances, as required by Marsden & Winch [2009] Fam CAFC 152 and [2010] 42 Fam LR.

Ratio Decidendi

Legal Principle Established

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