Pell and Pell and Anor

[2018] FamCA 432

FAMILY COURT OF AUSTRALIA

PELL & PELL AND ANOR [2018] FamCA 432

FAMILY LAW – CHILDREN – Parenting – Interim – Where the children’ father died – Where the mother has a mental illness – Whether a supervisor of the mother’s time with the children was suitable – Where the order made was inconsistent with a family violence order.

Family Law Act 1975 (Cth)

APPLICANT: The estate of the late Mr A Pell

RESPONDENT: Ms Pell

2^nd RESPONDENT: Mr B Pell

INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

FILE NUMBER: SYC 6380 of 2014

DATE DELIVERED: 14 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lazarus Lawyers

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: CA Williams Legal

COUNSEL FOR 2^ND RESPONDENT: Mr Hodgson

SOLICITOR FOR 2^ND RESPONDENT: Lazarus Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

Orders

(Orders made 9.5.18)

IT IS ORDERED THAT:

1. Mr B Pell be joined as the 2^nd respondent to the proceedings.

PENDING FURTHER ORDER:

1. Subject to order 3, X born … 2006 and Y born … 2009 (“the children”) spend time with the mother as follows:

   2.1.Every Wednesday afternoon, commencing Wednesday 16 May 2018, from after school until 7pm for dinner and if in school holidays, from 3pm to 7pm;

   2.2.For a period of eight weeks, each Sunday from 10am to 2pm, the first Sunday to be 12 May 2018;

   2.3.After a period of eight weeks, for a further period of four weeks, the children spend time with their mother each Sunday from 10am to 6pm;

   2.4.After that period of four weeks the children spend time with their mother from 10am Saturday to 6pm Sunday on each alternate weekend.

2. All time is to be supervised by Ms C and Ms C is to facilitate the collection and return of the children at the beginning and end of the times they are to be with their mother.

3. If the children are involved in any regular extra-curricular activity at any of the times they are to be with the mother, the mother is to ensure she facilitates their attendance at that activity.

4. The children otherwise live with the 2^nd respondent.

5. Pursuant to s 68P(2) Family Law Act 1975, I specify that the orders I have made are inconsistent with what I have been told is an existing provisional or interim family violence order and I note the orders that I have made provide for a detailed explanation as to the contact that is to take place.

6. I note that s 68P(2) of the Act on its face provides that an explanation has to be given in language that they might understand to the protected persons who in this case are children aged 12 and 8 but that failure to comply with that provision does not affect the validity of the order (s 68P(4)).

7. I note that the mother and the 2^nd respondent are present in court today. My overall reason for making these orders which are inconsistent with the family violence order is that I have formed the view that it is in the best interests of the children for them to be reintroduced to their mother and considering the proposals that are available I have formed the view that the orders that I have made are the best set of proposals. I make the order on the basis that the mother’s mental illness is currently stable. The orders include Order 3 which provides that the children’s time with their mother is supervised by a person, who gave oral evidence before me, and who will ensure that the children are safe from any behaviour by the mother from which the family violence order may have aimed at protecting the children. 

8. The 2^nd respondent can apply to vary the orders if there is a significant change in the circumstances of the children or either the mother or the 2^nd respondent from the circumstances that present themselves to me in this hearing upon giving seven days written notice.

9. The Independent Children's Lawyer is to inform the children of the effect of the orders that have been made and explain to them in language that they might understand, that I have formed the view that it is their best interests that the children be reintroduced to their mother and I further formed the view that the arrangements that I have ordered are in their best interests.

10. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

11. Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

12. This matter be adjourned for further mention on 6 September 2018 at 10.30am.

13. I otherwise reserve my reasons for making 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 Pell & Pell and Anor 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 6380  of 2014

Estate of the late Mr A Pell

Applicant

And

Ms Pell

Respondent

And

Mr B Pell

2^nd Respondent

REASONS FOR JUDGMENT

1. On 9 May 2018 I made orders in this matter and reserved my reasons. I now provide those reasons.

2. These interim proceedings concern the children X, born in 2006, and Y, born in 2009.

3. Except for the family consultant interviews in April 2018, the mother has not seen the children since January 2017. The children were in the care of their father until, in early 2018, the father passed away and the paternal uncle and the paternal grandmother (for whom the paternal uncle cares) moved into the former matrimonial home to be with the children. They both continue to live with and care for the children.

4. The mother has had serious mental ill health for a number of years. This has resulted in her hospitalisation on a number of occasions, including at Suburb D Mental Health unit for a period of six months in 2016 and at E Hospital for six weeks in September/October 2017.

5. Letters from the mother’s treating psychiatric state that she has suffered from episodes of bipolar disorder and severe depression.

6. The mother’s treating psychiatrist has recently provided a short medical report to the following effect:

   6.1.That the mother poses no immediate risk to the children;

   6.2.That, to the psychiatrist’s knowledge, the mother has never been violent when unwell, and the risk of harm would be more emotional than physical for the children;

   6.3.That she has the capacity to meet the physical needs of the children, and while there is nothing in her current presentation that would rule out her being able to care for them, she and they will need “considerable support”; and

   6.4.The children having their own psychological support and the support of F Group would be essential.

7. Counsel for the 2^nd respondent points out that the treating psychiatrist had in 2015 indicated that the mother was well enough to exercise parenting capacity in respect of the children but six months later had a relapse.

8. The evidence I have at this hearing, however, is that the mother currently poses no immediate risk to the children. The mother’s own estimate is that her mental health is the “best that it’s ever been”. I accept the submission from counsel for the 2^nd respondent that it is slightly disconcerting that the mother expressed the view to the family consultant that she believes that she does not need to take her medication, but continues to do so to “keep everyone happy”.

9. The mother’s proposal, set out in Exhibit 5, was that the children spend time with her as follows:

   9.1.Each Monday and Wednesday pick up after school, until 7 pm for dinner. If in school holidays from 3 pm to 7pm;

   9.2.Each Sunday from 10 am to 6 pm;

   9.3.That time occur in 1(a) and (b) for a period of 8 weeks;

   9.4.For a further period of 4 weeks that weekend time extend to each Saturday and Sunday between 10 am to 6 pm;

   9.5.That thereafter the children live with the mother from Saturday 10am to Sunday 6 pm; and

   9.6.All time is to be supervised by Ms C.

10. The 2^nd respondent’s proposal was set out in his Amended Response and was to the following effect:

    10.1.That Mr B Pell be joined as a party in the substantive matter;

    10.2.That, pending further order, Mr B Pell have sole parental responsibility the children;

    10.3.That, pending further order, the children live with Mr B Pell and that they have the exclusive occupation of the G Town property;

    10.4.That the mother and Mr B Pell forthwith undertake an intake assessment for H Contact Service in Suburb J with a view to the mother spending supervised time with the children beginning at the earliest available time on the following basis:

    a)  For a period of 2 hours every second Saturday; and

    b)  For the costs of such supervised contact to be the responsibility of the mother.

    10.5.That the mother to have telephone contact using the landline of the children’s home between 7:30 pm and 8 pm beginning the first Tuesday following the mother’s first Contact Centre visit and, weekly thereafter, provided that the mother’s attendance at the Contact Centre is sustained.

11. The mother did not seek any electronic communication with the children at this point.

12. The Independent Children's Lawyer took a position closer to the mother’s application than the 2^nd respondent’s application and proposed in submissions that the mother should spend time with the children:

    12.1.Every Wednesday afternoon, from after school until 7pm for dinner and if in school holidays, from 3pm to 7pm;

    12.2.For a period of eight weeks, each Sunday from 10am to 2pm, the first Sunday to be 12 May 2018;

    12.3.After a period of eight weeks, for a further period of four weeks, the children spend time with their mother each Sunday from 10am to 6pm;

    12.4.After that period of four weeks the children spend time with their mother from 10am Saturday to 6pm Sunday on each alternate weekend.

    12.5.All time is to be supervised by Ms C and Ms C is to facilitate the collection and return of the children at the beginning and end of the times they are to be with their mother.

13. The Independent Children's Lawyer indicated that he had made inquiries with two child contact centres and the waiting periods were three to six months at one and nine to 12 months at another. The other option was to pay a professional service like Phoenix Rising but neither party indicated they have the financial ability to do so.

14. Given the history of the mother’s poor mental health over an extended period, it was the common position of all that initially the children should be with their mother on a supervised basis.

15. The mother proposed that the 2^nd respondent’s niece, Ms C, be the supervisor. The Independent Children's Lawyer supported that proposal. The 2^nd respondent opposed that proposal, submitting that Ms C was not a suitable supervisor. The 2^nd respondent proposed no alternate supervisor, apart from a contact centre at some time in the future.

16. Ms C was called and gave oral evidence , which included:

    16.1.She is a woman of 26 years of age;

    16.2.She was a former nanny to the two children when they were very young;

    16.3.She is estranged from the paternal side of the family even though she is a member of it;

    16.4.She holds a position at Community Services as a State Administrator;

    16.5.She deals with persons with a mental illness, and specifically bipolar disorder, as part of her duties and she has a familiarity with recognising people when such a condition is florid and handling them in an appropriate way;

    16.6.She currently does not have a high opinion of her uncle (the 2^nd respondent). Nor does she have a high opinion of Ms K a former de facto partner of the deceased father of the children (she was not the father’s de facto partner at the time of his death. Ms K has had a close involvement in the lives of the children;

    16.7.She gave evidence that she was the primary carer of her younger sisters, although she does not have children herself;

    16.8.She has her own car; and

    16.9.She has flexibility in her work hours that would enable the arrangements that have been proposed to be facilitated and she was prepared to stay overnight with the mother and the children in the mother’s household.

17. Counsel for the 2^nd respondent vigorously cross examined Ms C. He submitted that I should infer, because of the antipathy Ms C has towards the 2^nd respondent and the other members of the paternal family, that I should not accept her assurances that she would intervene to protect the children if the mother had a breakdown in her mental health.

18. Counsel for the 2^nd respondent also asked Ms C about an occasion where the mother had brought X to her mother’s house when she was living there. Ms C confirmed that there was such an occasion but she did not know what the background of that occasion was. Nothing flows from that evidence.

19. Counsel for the 2^nd respondent also pointed to the fact that:

    19.1.In an affidavit that Ms C filed about incidents that happened shortly after the father’s death, she indicated that she thought that the children should be with their mother without in that affidavit making any reference to the history of the mother’s mental health problems; and

    19.2.That I should draw a negative inference against Ms C because she asserted that some of what the police had said in the AVO proceedings was untrue. I am not in a position to make any assessment in that regard but I note that currently the proceedings taken by the police for an AVO in protection of the children against the mother are being defended in a part-heard hearing in a local court.

20. Ms C gave very frank answers to questions that were asked. I was impressed with her evidence. I have no hesitation in accepting her as a witness of truth and her being genuine in what she told the court about her understanding of the mother’s problems and what she would do if she formed the view that the children were at risk as a result of the mother’s mental health becoming problematic.

21. The mother’s current premises are sufficient to accommodate both the children and Ms C overnight.

22. I have regard to the observations of the family consultant of the children with their mother. Their mother had not seen them since January 2017. Notwithstanding that, on the day of the interview on 20 April 2018, whilst the children were reticent initially, the mother and children’s interaction was observed to be “positive and warm”. 

23. Counsel for the 2^nd respondent also submitted that the family report writer had suggested that one of the advantages of a contact centre supervision arrangement would mean that the court would be able to look at centre’s notes and make some assessment from objective evidence as to the interaction between the children and the mother. That would even be more extensive if either of the parties had been able to fund an independent service such as Phoenix Rising. The reality is, however, that those services are not available in any type of practicable way to enable the children to start seeing their mother.

24. Balancing the advantages that Ms C offers, against the negative aspects referred to by counsel for the 2^nd respondent, I find that the advantages to the children of having Ms C as a supervisor far outweigh any disadvantage. That is particularly so in circumstances where there is no other viable option for supervision which would leave the court in the situation of not being able to make any order at all for the children to spend time with their mother which I find is certainly not in their best interests at this point.

25. To the great credit of the 2^nd respondent, I also record that his overall longer term position in respect of final orders is that in the event the mother can demonstrate over a period of twelve months that the difficulties with her mental health have stabilised, his position is that the children should live with their mother.

26. If the children are involved in any regular extra-curricular activity at any of the times they are with the mother, the mother is to ensure that she facilitates their attendance at that activity.

27. I accept the Independent Children's Lawyer’s submission that the matter should be brought back after a trial period just to check to see how the arrangements are progressing. I intend to adjourn this matter to 6 September 2018 for a procedural event to monitor how the existing orders are progressing.

28. At that time I will consider the ordering of a full family report. I note the family consultant has recommended a Chapter 15 report but as presently advised, it is unlikely that one would be able to be funded.

29. I take into account the provisions of s 68P Family Law Act 1975 (“the Act”). I have been told that the existing family violence order that was taken out on 3 April 2018 which is currently the subject of defended proceedings that are part heard, prohibited the mother having contact with the children as the protected persons. The orders that I make will cut across the family violence order and, accordingly, I need to specify in the orders why I am making orders that are inconsistent with that family violence order. I note that the orders that I have made provide a detailed explanation as to the contact which is to take place. I have formed the view that it is in the best interests of the children for them to be reintroduced to their mother and on the proposals that are available to me, I form the view that the orders that I have made are the best set of proposals.

30. The 2^nd respondent can apply to vary these orders if there is a significant change in circumstances of either the children, the mother or the 2^nd respondent, from the circumstances that present themselves at this hearing.

31. I note that s 68P(2) of the Act, on its face, provides that an explanation has to be given in language that the protected persons might understand, which in this case, are the children aged 12 and 8, but failure to comply with that provision does not affect the validity of the orders (s 68P(4)).

32. These reasons set out why I have made the orders that I have. It is not appropriate, however, that a copy of these orders be given to the children. Instead I direct the Independent Children's Lawyer to inform the children of the effect of the orders that have been made and explain to them in language that they might understand, that I have formed the view that it is in their best interests that they be reintroduced to their mother and that I have formed the view that the arrangements that I have ordered are best for them.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 June 2018

Associate: 

Date:  14.6.18