FAMILY COURT OF AUSTRALIA
| PISHKE & RUPP; BANNON & RUPP | [2010] FamCA 632 |
| FAMILY LAW – CHILDREN – WITH WHOM CHILDREN LIVE – With whom children spend time – The fathers removed their respective children from the mother without prior notice – The maternal grandfather has been convicted of sexual abuse of the subject children’s older half sibling – The children have been living with their respective fathers for some eighteen months – The children have spent little time with their mother since living with their respective fathers FAMILY LAW – CHILDREN – PARENTAL CAPACITY AND RISK – The mother suffered an acute mental health concern following the children’s removal – Where the mother has so far been compliant with medication and treatment advices – Expert opinion provides that the mother’s psychiatric diagnosis alone does not diminish parental capacity – Mother’s mental health alone does not deprive her of parental capacity, nor present an unacceptable risk – Fathers allege the mother poses a risk from drug use – Limited evidence of any such purported use – Fathers allege the mother places the children at risk with the maternal grandfather – Maternal grandfather is incarcerated and the mother asserts a firm desire to exclude him from the children’s lives FAMILY LAW – CHILDREN – MEANINGFUL RELATIONSHIP – Expert evidence provides that the children are significantly attached to both their parents – Children will benefit from a meaningful relationship with both parents – Duration of estrangement from the mother points to a conservative, incremental reintroduction – Consideration of willingness to facilitate a relationship with the other parent – Consideration of the fathers’ behaviours in removing children from the mother – Expert evidence reveals the children are progressing well in their father’s care – Best interests require stability and continuity in the care and living arrangements for the children |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61C, 61D, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZT, 69ZQ, 69ZW Mental Health Act 2000 (Qld) |
| Chappell & Chappell (2008) FLC 93-382 CDJ & VAJ (1998) 197 CLR 172 Cotton & Cotton (1983) FLC 91-330 Cowley & Mendoza [2010] FamCA 597 Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 263 ALR 368 Runcorn & Raine [2008] FamCA 1021 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 |
| APPLICANT BRC5106 of 2007: | Mr Pishke |
| APPLICANT BRC642 of 2009 | Mr Bannon |
| RESPONDENT: | Ms Rupp |
| INDEPENDENT CHILDREN’S LAWYER: | Doris Chan |
| FILE NUMBERS: | BRC | 5106 | of | 2007 |
| BRC | 642 | of | 2009 |
| DATE DELIVERED: | 26 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16-18 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT BRC5106 OF 2007: | Mr Sara |
| SOLICITOR FOR THE APPLICANT BRC5106 OF 2007: | Delaney & Delaney |
| COUNSEL FOR THE APPLICANT BRC642 OF 2009: | Mr Middleton |
| SOLICITOR FOR THE APPLICANT BRC642 OF 2009: | Schultz Toomey O’Brien |
| COUNSEL FOR THE RESPONDENT: | Ms Howe |
| SOLICITOR FOR THE RESPONDENT: | Walker Pender |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Bourke |
| SOLICITOR… |
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- AGLC
- Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
- Case
- [2010] FamCA 632
- Decision Date
CaseChat Overview and Summary
The court was required to determine with whom the children should live, considering the existing living arrangements with their fathers, the mother's capacity to care for them, and the potential risks to the children. Specifically, the court had to assess the mother's mental health following the children's removal, allegations of drug use by the mother, and the risk posed by the maternal grandfather. Furthermore, the court needed to consider the children's need for a meaningful relationship with both parents, the impact of the prolonged estrangement from the mother, and the fathers' conduct in removing the children. The court also had to weigh the benefit of stability and continuity in the children's lives against the importance of maintaining their relationships with both parents.
In its reasoning, the court acknowledged expert evidence indicating the children's significant attachment to both parents and the benefit they would derive from a meaningful relationship with each. However, the duration of the estrangement from the mother necessitated a conservative and incremental reintroduction. The court found that while the mother had experienced an acute mental health concern, her current compliance with medication and treatment, coupled with expert opinion, suggested her diagnosis alone did not diminish her parental capacity or present an unacceptable risk. Allegations of drug use by the mother were not substantiated by limited evidence, and the court noted the mother's stated desire to exclude the incarcerated maternal grandfather from the children's lives. The court ultimately ordered that the children live with their respective fathers, but established a phased approach for the mother to spend time with them, increasing over time, and mandated equal shared parental responsibility for major long-term issues. The court also included detailed provisions for communication, school holidays, special occasions, and ongoing medical reporting to ensure the children's welfare and facilitate their relationships with both parents.
Orders
Orders of the court
Parental Responsibility
1.
The father and the mother shall have equal shared parental responsibility for the child S PISHKE born … December 2005 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
2.
The father and the mother shall have equal shared parental responsibility for the child C BANNON born … October 2002 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
3.
The parties shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
4.
The children S born … December 2005 and C born … October 2002 shall live with, spend time with and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
5.
The child S born … December 2005 live with his father.
6.
The child C born … October 2002 live with her father.
7.
The mother shall spend time with the child C from 10am to 4pm on each of the following Saturdays: 31 July 2010, 7 August 2010, 14 August 2010 and 21 August 2010.
8.
The mother shall spend time with the child S from Saturday 6pm to Sunday 4pm on of the following weekends: 31 July – 1 August 2010, 14-15 August 2010.
9.
Commencing Saturday 28 August 2010 the mother shall spend time with both children from Saturday 10am until Sunday 4pm each alternate weekend.
10.
For the purpose of paragraphs 7 to 9 above, all handovers shall, unless otherwise agreed in writing between the parties, take place at the H Contact Centre, with the costs of such handover to be shared equally between the parties.
11.
Each of the fathers of S and C shall facilitate C spending time and communicating with S for a period of not less than eight (8) hours once per month.
12.
The children shall spend half of each gazetted school holiday with the mother, being the first half in 2010 and each even numbered year thereafter and the second half in 2011 and each odd numbered year thereafter.
13.
The parents shall spend time with and communicate with the children on special occasions as follows:
(a) In each year that Mother’s Day falls on a weekend when the children are in their respective father’s care then the children shall spend time with the mother on the Mother’s Day weekend in lieu of the following weekend and in each year that Father’s Day falls on a day when the children are in the mother’s care, the children shall spend time with their respective fathers on the Father’s Day weekend in lieu of the following weekend;
(b) On each child’s birthday, the parent who does not currently have care of the child shall spend time with the child from 9am until 1pm, unless such day is a school day then the parent shall spend time with the child from 4pm until 6pm;
(c) In 2010 and each alternate year thereafter, the mother shall spend time with the children from 10am Christmas Eve until 1pm Christmas Day.
(d) In 2011 and each alternate year thereafter, the mother shall spend time with the children from 1pm Christmas Day until 5pm Boxing Day.
14.
The mother shall be at liberty to telephone the children at all reasonable times as may be agreed between the parties but not less than once per week on Wednesday between 4pm and 6pm, with the fathers to facilitate such calls and provide privacy for the children to take such calls.
15.
The fathers shall each facilitate the respective children telephoning the mother at all such times that are reasonably requested by the children.
16.
During periods when the children are spending time with the mother in accordance with order 12, 13(c) or 13(d), the fathers shall be at liberty to telephone the children at all reasonable times as may be agreed between the parties but not less than once per week on Wednesday between 4pm and 6pm, with the mother to facilitate such calls and provide privacy for the children to take such calls.
17.
The mother shall keep each father informed at all times of the name and address of her current treating psychiatrist or psychologist.
18.
The mother shall obtain from her treating psychiatrist a written report as to her current psychiatric condition, her compliance with any prescribed medication and any other recommended treatment regime in so far as each and all affect or might affect her capacity to care for the children and shall provide copies of such report to each father at six-monthly intervals from the date of this order, with the first such report to be prepared and provided by 30 September 2010.
19.
The evidence of Doctor V, Consultant Psychiatrist be transcribed and a copy of the transcript be provided to the Independent Children’s Lawyer.
20.
The Independent Children’s Lawyer shall provide to the mother’s treating medical practitioners, including her general medical practitioner and also her treating psychiatrist Dr D, a copy of:
(a) The transcript of evidence of Doctor V and the Psychiatric Reports prepared by Doctor V annexed to the affidavit of Doctor V filed 4 December 2009 in these proceedings;
(b) The Family Reports by Mr L, Family Consultant dated 21 October 2009 and 12 February 2010 prepared in these proceedings.
21.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
(b) To speak to, and receive at that parent’s own expense, oral or written communication, from any school or other educational institution attended by the children;
(c) Keep the other parent appraised of their residential address and telephone contact number, providing notice within two (2) days of any change in same;
(d) Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
22.
Each party shall enrol in a Parenting Orders Programme (aka POP) with Relationships Australia or Foundations Child & Family Support Ltd within fourteen (14) days of these Orders and each party shall attend to completion such programme and each party shall thereafter provide to the other party, a copy of their respective certificate of completion.
23.
The Independent Children’s Lawyer is discharged 30 days subsequent to compliance with paragraph 20 of these orders.
IT IS FURTHER ORDERED THAT
Dismissal of Other parenting Applications
24.
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other Orders
25.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
26.
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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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