PIGGINS & LYTHE

[2019] FamCA 487

FAMILY COURT OF AUSTRALIA

PIGGINS & LYTHE [2019] FamCA 487

FAMILY LAW – CHILDREN – Consent Order – Where the parents have consented to a final parenting order – Where both parents face significant parenting challenges – Where the Independent Children’s Lawyer does not consent to the order – Where the Department of Child Safety, Youth and Women declined to intervene in the proceedings – Where there are limited options available for the Court – Where the children will continue to live with the father and spend time with the mother – Where the parents are to engage with Family Connect Services to assist in day to day parenting and undertake parenting courses – Where the parents are to maintain regular contact with their respective treating general medical practitioners – Where the order and reasons are to be provided to the Department of Child Safety, Youth and Women.

APPLICANT:

Ms Piggins

RESPONDENT: Mr Lythe

INDEPENDENT CHILDREN’S LAWYER: Ms Bolton

FILE NUMBER: BRC 12861 of 2016

DATE DELIVERED: 22 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 22 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Murphy

SOLICITOR FOR THE APPLICANT: Colville Johnstone Lawyers

COUNSEL FOR THE RESPONDENT: Ms Frizelle

SOLICITOR FOR THE RESPONDENT: Freedom Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Horsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CNG Law

It is ordered by consent (of the father and the mother) that:

1. All previous parenting orders be discharged.

2. Ms Piggins (the mother) and Mr Lythe (the father) have equal shared parental responsibility for the child X born … 2012 (the child).

3. The child live with the father.

4. Unless otherwise agreed between the parents in writing, the child spend time with her parents as follows:

   (a)       In the event the mother lives more than 35 kilometres away from the school at which the child attends, the child shall spend time with the mother:

   (i)Each alternate weekend from 6.00pm Friday until 3.00pm Sunday; and

   (ii)Changeover shall occur at Subway restaurant at Town G.

   (b)       In the event the mother relocates to live within a 35 kilometre radius of the school at which the child attends:

   (i)The child shall spend time with the mother on the first, second, third and (if such weekend exists) fifth, weekend of each month from 3.00pm Friday until 3.00pm Sunday; and

   (ii)The child shall spend time with the father on the fourth weekend of each month; and

   (iii)The child shall spend time with the mother in the week immediately following the fourth weekend of each month, from 3.00pm (or the conclusion of school) on the Monday until 9.00am (or the commencement of school) on the Wednesday and for the purpose of this Order, the mother shall collect the child from school at the commencement of time and deliver the child to school at the conclusion of time; and

   (iv)For the purpose of this Order, the mother shall collect the child from school at the conclusion of school on Friday; and

   (v)The child shall be returned to her father at a restaurant at Town B on Sunday; and

   (vi)Changeovers which are not otherwise provided for by this Order, including changeovers during school holidays, shall occur at the restaurant at Town B.

   (c)       For one week during each of the school holidays at the conclusion of Term 1, 2 and 3, with the mother being:

   (i)The first half in even numbered years, commencing at 12.00pm on the first Saturday of the break and concluding at 12.00pm on the second Saturday of the break; and

   (ii)The second half in odd numbered years, commencing at 12.00pm on the second Saturday of the break and concluding at 12.00pm on the third Saturday of the break. 

   (d)       For half of the school holidays at the conclusion of Term 4, with such time to be spent in alternating weeks between her parents with changeover to occur at 12.00pm on the Saturdays, with the father to have the first week in odd-numbered years and the mother to have the first week in even-numbered years.

5. The child shall spend time with her mother over the Christmas period as follows, and this Order shall take precedence over any other order in respect of the child’s time with her parents:

   (a)       From 12:00pm on 23 December until 12:00pm on 26 December in odd numbered years

   (b)       From 12:00pm 26 December until 12:00pm on 29 December in even numbered years.

6. Unless otherwise agreed between the parties in writing, the child shall spend time with:

   (a)       The mother on the weekend on which Mother’s Day falls from 6.00pm on the Friday to 3:00pm on the Sunday if not otherwise in her care; and

   (b)       If the child is not otherwise in the father’s care on the weekend of Father’s Day, the child shall remain in his care that weekend.

7. The parent with whom the child is not then spending time shall be at liberty to communicate with the child by telephone between 6:00pm and 6:30pm on Tuesdays and Thursdays and at all such other reasonable times as requested by the child;

   And for the purposes of this Order, each parent shall:

   (a)       Ensure the child is able to access the telephone to make the call;

   (b)       Ensure the child have privacy during the conversation.

8. The parents shall communicate via a communication book and the parents shall ensure that they send the communication book with the child to each other parent’s house.

9. The parents authorise, by this Order, any day care/kindergarten/schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent’s cost).

10. The parents authorise, by this Order, any doctor, medical practitioner or allied health practitioner attended by the child to give each parent information about the child’s progress (at the requesting parent’s cost).

11. Each parent is, by this Order, authorised to attend any school or extra-curricular activity at which parents are entitled to attend.

12. That during the time the child is with either parent, that parent shall:

    (a)       Not question the child about the personal life of the other parent;

    (b)       Speak of the other parent respectfully; and

    (c)       Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

13. The father is restrained, and an injunction issue restraining him, from consuming alcohol.

14. Within fourteen (14) days of the date of this Order, the mother shall attend upon her general practitioner to obtain a referral to an appropriate mental health practitioner.

15. The Independent Children’s Lawyer shall provide to each parent’s general practitioner, the child’s school, and the Department of Child Safety, Youth and Women copies of:

    (a)       The Family Report of Ms C dated 8 April 2019;

    (b)       The Family Report of Mr D dated 21 August 2017;

    (c)       The Psychiatric assessment by Dr F dated 18 July 2017; and

    (d)       The psychiatric assessment by Dr F dated 4 July 2019.

16. Each parent shall, forthwith upon changing general practitioner or obtaining or changing mental health professional, provide that individual with a copy of:

    (a)       The Family Report of Ms C dated 8 April 2019;

    (b)       The Family Report of Mr D dated 21 August 2017;

    (c)       The Psychiatric assessment by Dr F dated 18 July 2017; and

    (d)       The psychiatric assessment by Dr F dated 4 July 2019.

17. The mother shall attend upon her mental health practitioner in such manner and for such time as advised by that practitioner.

18. Nothing in this Order should be taken as preventing the parents from making agreements in respect of the parenting arrangements for X outside of this Order.

19. The mother is restrained and an injunction issue restraining her from discussing with the child any allegation or concerns in relation to the physical or sexual abuse of the child by the father.

20. The mother is restrained, and an injunction issue restraining her from engaging the child with any medical practitioner including counsellor, psychologist or psychiatrist in relation to allegations of physical or sexual abuse of the child by the father.

21. The father will attend upon his general practitioner once per calendar month.

22. The mother will attend upon her general practitioner at least once every six weeks.

23. Within seven (7) days of the date of this Order the parties will do all acts and things to self-refer to H Group and accept the services recommended for each of them by that agency from time to time.

24. The parents will forthwith enrol (if not already enrolled) and complete the following courses:

    (a)       The Circle of Security program;

    (b)       Triple P parenting program;

    (c)       Parenting Orders Program.

25. The Independent Children’s Lawyer shall provide a copy of this Order and the reasons for judgment delivered contemporaneously herewith, to each parent’s treating general practitioner.

26. All outstanding applications be dismissed.

IT IS FURTHER ORDERED

1. The Independent Children’s Lawyer is discharged upon completion of paragraph 25 herein, or within 30 days of the date of this Order, whichever occurs first.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

3. It is requested that the Senior Registrar of the Family Court at Brisbane send a copy of this Order and the reasons for judgment to the Director-General of the Department of Child Safety, Youth and Women.

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 Piggins & Lythe 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 BRISBANE

FILE NUMBER: BRC 12861 of 2016

Ms Piggins

Applicant

And

Mr Lythe

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Piggins and Mr Lythe are the parents of X born in 2012. The parents were in a relationship from 2009 to 2016. The child has lived with the father since 22 September 2016 and currently spends alternate weekends and half holidays with the mother.

2. The mother is 33 and in receipt of a disability support pension. She lives with her mother and step-father in Brisbane.

3. The father is 59 and has been in receipt of a disability support pension for the past 25 years. He lives with X and his two other children, Y aged 17 and Z aged 13, in rental accommodation on the E Region.

4. In February this year the matter was set down for a three day trial, as the parents were in dispute about where the child, X, should live and whether or not the other parent presented an unacceptable risk of harm to the child. Both parents were nevertheless proposing that the other parent continue to spend time with the child.

5. Today was to be the first day of the trial.  The parents have resolved their dispute and request that an order be made by consent providing for the child to continue living with the father and spending alternate weekends with the mother, but providing for an increase in the time the child spends with the mother if she moves to the E Region, as she says is her intention.

6. Importantly, the mother concedes that the evidence upon which she seeks to rely in this case does not support a finding that the child has been sexually or physically abused by the father, nor that there is an unacceptable risk of such abuse occurring in the father’s household.

7. I also note that the mother’s numerous allegations against the father have been the subject of investigation and assessment by the Queensland Police Service and the Department of Child Safety, Youth and Women (“the Department”) and that there is no current intervention by the Department with this family.

8. The independent children’s lawyer (“ICL”) does not consent to the proposed order, for reasons which will become apparent, but acknowledges that, as the Department has declined on two occasions to intervene in the proceedings, the options for this Court are limited. If a parenting order is to be made, it can only be made in favour of the mother and/or the father.

9. Like so many cases presenting to this Court, both parents have parenting challenges, to put it mildly.

10. The father suffers from a psychiatric illness (a diagnosis he disputes) and his life has been marked by periods of psychosis spanning some forty years. Dr F, the psychiatrist retained by the ICL to assess each party, opines that during periods of psychosis the father would be “totally out of touch with reality, experiences auditory hallucinations, unable to care for himself, has been a danger to himself and to others, and he required involuntary admission to an inpatient psychiatric facility”.

11. The father is not currently receiving any treatment and does not have a psychiatrist monitoring his condition. However, the father does attend ‘regularly’ on a general medical practitioner, although not on a monthly basis as required by an Order to which he consented on 3 August 2017.

12. In an updated assessment of the father, Dr F opines that while the father cannot be cured, he has been stable over the last six or seven years and does not need any other medical or psychiatric input at present, and does not currently require psychotropic medication. He further opines that:

    There is no current clinical concern about the stability of his mental health in terms of parenting three children, Y aged 17, Z aged 13 and X aged 6 years.

    This is because of how well he has embraced the need for assessments of his mental health and the stability of his condition since he was assessed on 08 June 2017.

    Mr Lythe is not depressed or suicidal now.

    There is no risk of him harming The Child at present.

    His day to day functioning now is very good.

    Mr Lythe again showed a very good understanding of the negative impacts upon the child of parental disputing.

    He also demonstrated a very good capacity to try and work with The Mother following separation.     

13. Nevertheless, Dr F opines:

    There is an ever present risk of any sort of relapse of psychosis (most probably elevated mood).

    This sort of psychiatric illness could produce any myriad of altered and bizarre thinking and behaviour.

    The prognosis is improved the longer he remains mentally stable and physically well.

    The prognosis is therefore guarded.

    And

    Given the parenting responsibilities and the matters before The Court, Mr Lythe needs some form of regular medical “check in” to monitor his mental state, and his general function.

14. It is important for the father to accept what Dr F says about the risk of relapse:

    This sort of psychiatric disorder could relapse or recur or return suddenly and in a very severe form, in the space of a few days.

    He should have a plan for his relatives to be aware of the early warning signs of a recurrence of psychotic illness (so that they might alert the appropriate authorities of the need of urgent psychiatric assessment and treatment).

    I remain of the view that the possible impact upon The Child of a recurrent episode of psychotic illness could have a profound adverse impact on The Father’s psychological functioning.

15. While living with the father, there have been issues about the child’s less than optimal attendance at school (a fact noted in relation to his other two children also, although the eldest child ceased attending school in November last year before completing grade 11, and remains unemployed). Despite X’s late attendance or non-attendance at school being raised with the father in June last year, the child continues to miss an inordinate amount of school. In the first semester this year she has missed 17.5 days.

16. The school records in June last year also indicate a concern about the child’s late bedtime and a referral was made for the father to contact Family and Child Connect (the same agency recommended by the Department in March 2019). This is a service operated under various auspices, e.g. H Group, offering practical assistance in day to day parenting.

17. In March 2019, the child was noted to have head lice and worms. These are common ailments for young children but there seems to have been some concern that the condition of the child indicated neglect and it was on this basis that the general practitioner made a notification to the Department who, in turn, recommended assistance be sought from Family and Child Connect, as already mentioned.

18. Although resisting assistance from these services to date, the father is now prepared to consent to an order that he engage with and cooperate with them. Apparently each parent can self-refer online and within seven days a case worker will be allocated to each parent.

19. The father also consents to an order that he refrain from consuming any alcohol (a risk factor identified by Dr F as the father has a history of alcohol abuse) and also consents to engage monthly with his general practitioner.

20. Turning then to consider the mother, I note that she suffers from “lifelong and at times crippling anxiety” and additionally, a rare congenital disorder involving facial and neural development. Dr F opines that the “combination of intellectual impairment … a disturbance of social skills and personality development … chronic severe social anxiety, and episodes of recurrent depression combine to create serious functional impairment for independent living and therefore parenting functions”.

21. Neither the mother nor her mother accept Dr F’s assessment and, despite it, the mother proposes to live independently in the not too distant future. As noted, the parents are proposing that if the mother lives independently, she will increase her time with the child to weekly overnight time (3 nights each week) and holiday time.

22. Ms C is a psychologist who prepared a family report in this matter and as part of her role she undertook a home assessment of the child in each parent’s home. Ms C raises some additional risk factors but nevertheless recommends that the child continue to live with the father and preferably spend increased time with the mother. It seems that the presence of the child’s two half-brothers may provide an element of safety for the child while in the father’s household, particularly to seek help should the father shows signs of a relapse.

23. During the family report interviews, the mother was unable to control her emotions in front of the child. Her crying was triggered by the child crying over not being allowed to cut something with scissors. It was recommended that the mother may benefit from support from a psychologist. This recommendation was made in April 2019 but the mother has not acted on it. The mother now consents to an order that she do so, which will be particularly important should the mother live independently. Ms C noted that it was:

    … a limitation of this process [the family report process] that there is no way to assess the mother’s capacity for parenting if she were living independently. She says she … no longer has family on the E Region …

24. Issues about each parents ability to parent the child were observed by Ms C e.g.

    At both households, the parents acceded to X’s wishes if they were delivered forcefully, with crying and temper. It is therefore to be hoped that both parents will build their guidance skills, so that the child can understand that the parents are the leaders and she does not have to be.

1. Each of the parents have consented to undertaking parenting courses to assist them in addressing their many parenting issues.

2. There have been issues about failure to communicate, but the parents propose that this be addressed by using a communication book. This of course requires each parent to ensure that the communication book is exchanged on each occasion the child moves between the households.

3. While the placement of this little girl with either parent is less than optimal, there is no other option for the Court. I am not suggesting that this is a case where the child should necessarily be removed from the care of the parents (acknowledging, as I do, that there are too few placements for children in such circumstances) and I make no criticism of the Department for not intervening in the proceedings given that they are generally concerned with situations of immediate and significant harm. Rather, it is a case where ongoing monitoring of the child in each parent’s care is a necessity. After a final order is made, this Court will have no way of ensuring the future safety of this child.

4. In my view, this child remains vulnerable given the challenges faced by each parent. Each parent requires ongoing assistance with day to day parenting e.g. ensuring the child attends school on time and every day, ensuring the child has a routine bed time, ensuring the child bathes daily, ensuring the child does not take unnecessary risks to her safety, ensuring the child has healthy meals etc.

5. It would be of assistance if the Department could monitor the parents from time to time to ensure they are meeting the requirements contained in the order to which they have consented and, for that reason, I propose to request the Senior Registrar of this Court to send these reasons and the order to the Department with a request that they do so.

6. Despite the ongoing concerns about the future for this child, I have decided to accede to the parent’s request and make the order sought by them. I am prepared to accept that the parents have the best interests of their child at heart and will commit to doing all that is required of them by the order they consent to today.

7. Accordingly, I make the order set out in the minute signed by the parents, with the additional provision for the ICL to be discharged and for the Senior Registrar to provide a copy of the order and these reasons to the Department.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 July 2019.

Associate:

Date:  23 July 2019