Perrett and Perrett

[2017] FCCA 3374

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERRETT & PERRETT [2017] FCCA 3374

Catchwords:
FAMILY LAW – Interim parenting matter – concerns as to the state of the mother’s mental health – evidence untested.

Legislation:

Family Law Act 1975 (as amended), ss.60CC(2) & (3)

Applicant: MR PERRETT

Respondent: MS PERRETT

File Number: ADC 499 of 2017

Judgment of: Judge Mead

Hearing date: 10 July 2017

Date of Last Submission: 10 July 2017

Delivered at: Adelaide

Delivered on: 10 July 2017

REPRESENTATION

Counsel for the Applicant: Ms. H. Tinning

Solicitors for the Applicant: Norman Waterhouse

Counsel for the Respondent: Mr. A. Jordan

Solicitors for the Respondent: Alderman Redman Family Lawyers & Mediators (as they were then known)

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

Counsel for the Independent Children’s Lawyer: Mr. M. Boehm

ORDERS

1. That pending trial X born (omitted) 2012 and Y born (omitted) 2014 live with each of their parents as follows:

   (a)with their mother from the conclusion of school (or 3:30pm if a non-school day) on Wednesday and Friday of each week commencing on 12 July 2017 until the commencement of school on the Thursday (or 12 noon if a non-school day) and to 12 noon on the Saturday;

   (b)that the time referred to in paragraph 1(a) hereof be taken in the presence of and under the supervision of the maternal grandmother;

   (c)that the commencement of the said time be subject to the filing and serving of an affidavit of the maternal grandmother evidencing her having read and understood the Legal Services Commissions brochure as to the obligations of a supervisor and acknowledging that she has read a copy of the order made herein on 1 March 2017 and in particular paragraph 6 of that order; and

   (d)with their father at all other times.

2. That the mother and the maternal grandmother deliver the children X and Y to the father at the (omitted) at 3:30pm today.

3. That until further order all handovers that occur at the conclusion or commencement of school occur by way of the mother collecting Y from or returning her to the father in the school carpark and collecting X from or returning him to his classroom.

4. That until further order all handovers that do not occur at the conclusion or commencement of a school day continue in accordance with the terms of paragraph 5 of the order of 1 March 2017.

5. That until further order paragraph 6 of the order of 1 March 2017 remain in full force and effect.

6. That paragraph 1(b) of the order of 1 March 2017 be discharged and until further order the father be restrained and an injunction is hereby granted restraining him from attending at or upon the premises of the former matrimonial home.

7. That the respondent mother be at liberty to provide to her treating medical practitioners or allied health professionals copies of:

   (a)the reports of Dr B and Dr E filed herein

   (b)the report of Ms N dated 28 June 2017;

   (c)the affidavit of Ms R filed herein on 2 May 2017; and

   (d)the affidavit of Ms S filed herein on 8 June 2017.

8. That on or before 11 August 2017 the applicant file and serve an amended application or reply with respect to issues of property settlement and spousal maintenance.

9. Directions only as to either a trial listing in this court or in the Family Court of Australia be adjourned to 9:30am on 11 July 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 499 of 2017

MR PERRETT

Applicant

And

MS PERRETT

Respondent

REASONS FOR JUDGMENT

1. This matter comes back before me today with respect to the very vexing issue of proper parenting arrangements for X and Y on an interim basis.  My reasons today need to be looked at in conjunction with my reasons from the hearing on 13 June.  There I went through the matter in much more detail than I intend to do today and considered the evidence to date because of course, the order that I made on 13 June was an order varying the children’s arrangements where I found, even on an interim basis and without making findings of fact, but taking into account the longstanding concerns about the mother’s mental health from a variety of sources – medical profession, police and the father and the lack of action by any child protection services, notwithstanding numerous reports to Child Protection – all, as Mr Jordan says, reports made by the mother upon recommendations of being told what to do by various people - that nevertheless there were longstanding concerns as to the mother’s mental health dating back from the time that she lived in (omitted). 

2. Certainly there was to that time no appreciable insight on the part of the mother as to what might be required to at least address the Court’s concern.  I note today that Mr Jordan tells me that the mother has now engaged with a psychiatrist and with a psychologist, but I think it might be said that that was being dragged to that, kicking and screaming, rather than moves having been made in that regard which would have been very helpful, indeed, some considerable time ago. 

3. On the last occasion I was concerned as to the risk attaching to the mother.  The issue that I had with Dr B’s report, which I made clear on the last occasion and which led to the report of Dr E –I think I described at that time as the elephant in the room was that Dr B, notwithstanding this entire file in simple terms being about the mother alleging and firmly believing that the children have been sexually abused by the father and to date there being no evidence whatsoever from any agency, medical practitioner or the like or police that could properly support such an allegation, and in circumstances of the complete denials by the father, was an issue simply not addressed by Dr B.

4. All Dr B said was that the mother did not raise that issue with him.  That meant that although he and the mother were able to have conversations about what might be described as more run-of-the-mill matters and also, of course, issues of domestic violence raised by the mother with Dr B, the mother was not placed in any position where she had to have what might be an uncomfortable discussion with a psychiatrist about the very issue at the centre of this matter. 

5. I found the report of Dr B most unhelpful on an interim basis.  The submission that Mr Jordan made over and over again today – and quite properly and quite rightly – was that none of the evidence before the Court is tested.  And so the Court is called upon to make a decision as best it can on an interim basis, taking into account the material that is before it to which I referred at length at the hearing on 13 June. 

6. Also, as Mr Jordan put before the Court today, the issue is risk.  Are these children at risk in the current care arrangements ordered on 13 June.  Are they at risk of physical harm by the mother.  Are they at risk of psychological harm, being primarily in the mother’s care.  I say risk of harm from the mother because, I repeat, there is simply nothing on this file that would support any allegation made by the mother as to the children having been abused by the father.

7. Ms N, who is a social worker and therefore perhaps the best person, to look at the interaction between the children and each of the parents reported on that event.  

8. I go to page 16 of her report where she says:

   “The children were happy and settled in their mother’s care and she was gentle, kind and caring towards the children and, overall, emotionally attuned to their needs.  The interaction was quiet and reserved in nature being in line with apparently the mother’s nature and the children’s equally shy and quiet nature.  Mother easily separated from the children.  The children showed no emotional response other than accepting their mother’s request for a hug when they went in to be observed by dad. 

   Upon sighting their father, both children smiled.  And this was noticed given their more reserved affect and emotional responses with their mother earlier that morning.  X started to run to his father then hesitated and stood on the spot.  Y ran to her father, jumped into his waiting arms.  X then calmly walked towards his father and embraced him in a hug.  Each child held their father’s hand and on they went and had a perfectly pleasant observed interaction period.”

9. Coming therefore back to the issue of risk.  The other piece of information that the Court now has before it, completely untested as Mr Jordan said, is the report of Dr E.  The difference between the report of Dr E and the report of Dr B is that Dr E specifically addressed issues with the mother as to concerns expressed since the time that she was in (omitted), as to whether there are mental health difficulties which have always been denied by the mother, and whether those difficulties are such that there should be some form of treatment and the difficulties addressed. 

10. Dr E came to the conclusion that if what the mother is saying is completely correct and if the children have indeed been abused by the father and if she has experienced domestic violence in both marriages, then she is probably not suffering from any psychiatric disorder.  If however those things have not occurred or not occurred to the level alleged and if all of the concerns expressed by the various medical experts, police, child protection authorities and the like do not bear out the mother’s concerns, then there is a risk that the mother is suffering from a paranoid personality disorder or perhaps a delusional disorder. 

11. I do not know whether that is the case and I cannot possibly make a finding in that regard until such time as the evidence is tested. However, even on an interim basis, I have to consider the factors in section 60CC(2), and the most important of those being the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The court is directed by the legislation[1] that that is the most important factor over and above any of other considerations that the court has to take into account.

    [1] Family Law Act 1975, ss.60CC(2)

12. I discussed the other considerations at some length on 13 June.  The most significant of those factors for the purposes of this case is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or other persons with whom they have been living. 

13. What I am trying to balance then this morning is the best of the worst outcome.  Are these children at risk with mum.  Is that risk greater than any impact on their psychological wellbeing from being moved from the primary care of the mother to the primary care of the father.  My view is that they are more at risk remaining in the mother’s primary care at this point in time than moving into the care of the father with whom I am satisfied they have a good relationship.

14. I am satisfied they have a good relationship with their mother as well, but I am concerned about the conversations that the mother has had with the children.  I am concerned about the various comments made in medical reports from time to time to which I referred on 13 June, about the state of the mother’s mental health.  I am concerned about the insight of the mother in addressing those issues because when they have been raised with her by medical practitioners and the like she has been resistant to addressing the concerns that they have raised. 

15. Her view in simple terms has been that, “There is nothing wrong with me and I do not need to address any of these issues.”  It is very pleasing now to hear from Mr Jordan that those matters are being addressed.  If however one of the possibilities – and I put it no higher than that - if one of the possibilities is that the mother is suffering from a paranoid personality disorder or perhaps a delusional disorder, then I cannot ignore that issue in circumstances where there is another option for the care of these children, and that is the primary care of the father. 

16. I am satisfied that the children have a good relationship with their father.  We were last here on 13 June and certainly I do not hear anything today about the children having been significantly adversely affected by the change that I made on that occasion, which was a quite significant change.  I am satisfied that so long as this trial can come on within a reasonable period of time that if, in the end, the court determines that the children should return to the care of the mother because either (a) she does not suffer from any of the possible psychiatric issues suggested by Dr E or alternatively, (b) she has satisfactorily addressed whatever issues she has and taken an approach that is more commensurate with the wellbeing of the children and they need to go back into her primary care, then I consider that is the lesser of two evils. 

17. I cannot, as Mr Jordan says, make any findings, but I have expressed on 13 June and I express again today my concern that if the mother is suffering from any of the matters raised in Dr E’s report then the children’s best interests must be met by moving into the primary care of the father. 

18. I do not however consider that there should be no overnight time, and I accept the submission of the Independent Children’s Lawyer. 

19. I note the arguments of the mother’s counsel that if everybody is asleep and if Y is co-sleeping with the mother then there cannot be supervision.  I know that the maternal grandmother is living in the household.

    Discussion between Bar and Bench

20. That changes my view.  I will still accept the submission of the Independent Children’s Lawyer and I will still make the time one to two nights each week with the mother, but it must be supervised at all times.  I change my view because the mother is obviously going at this stage through a very difficult time indeed.  Nobody could manage the circumstances at the moment without a great deal of stress - the mother or the father.  But the mother, as I understand if, if her mother is not living with her, will be living in the area where the children live, where the father also lives and without the day-to-day support of her mother, which hitherto I have understood to be the circumstances.  For those reasons I intend, on an interim basis only, to have the children live in the primary care of the father.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date:  21 February 2018