Prescott and Sanderson (No 2)

[2015] FamCA 167

FAMILY COURT OF AUSTRALIA

PRESCOTT & SANDERSON (NO 2) [2015] FamCA 167

FAMILY LAW – PARENTING — suspension of introduction of overnight time — vulnerable children — referral of matter to DHS as a matter of urgency

APPLICANT: Mr Prescott

RESPONDENT: Ms Sanderson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 1306 of 2012

DATE DELIVERED: 11 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Schmidt

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Hoban

Orders

IT IS ORDERED THAT:

1.Until further order, the operation of paragraph 12 of the Order made on 30 January 2015 be and is hereby suspended.

IT IS REQUESTED:

2.That the Secretary of the Department of Human Services of the State of Victoria intervene in these proceedings pursuant to s 91B of the Family Law Act1975 (Cth) (“the Act”).

IT IS DIRECTED:

3.That the independent children’s lawyer provide Professor S with a copy of this Order and my reasons for decision, when transcribed, as soon as possible.

4.That a copy of this Order and my reasons for decision, when transcribed, be sent to the liaison officer from the Department of Human Services at this Registry of the Court.

IT IS ORDERED BY CONSENT THAT:

5.At or before 4.00 pm on 19 March 2015, the father file, and serve upon the mother and independent children’s lawyer, the following:-

(a)    all affidavits of evidence in chief upon which he intends to rely at the final hearing of these proceedings, noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief; and

(b)    an Amended Initiating Application setting out with precision the final Orders he seeks.

6.At or before 4.00 pm on 2 April 2015, the mother file, and serve upon the father and the independent children’s lawyer, the following:-

(a)    all affidavits of evidence in chief upon which she intends to rely at the final hearing of these proceedings, noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief; and

(b)    an Amended Response to Initiating Application setting out with precision the final Orders she seeks.

7.At or before 4.00 pm on 13 April 2015, the father file, and serve upon the mother and independent children’s lawyer, any affidavit in reply to the affidavits filed by the mother pursuant to paragraph 2 hereof.

8.At or before 4.00 pm on 13 April 2015, the independent children’s lawyer file, and serve upon the mother and father, all affidavits of evidence in chief upon which she intends to rely at the final hearing of these proceedings.

9.The father, mother and independent children’s lawyer each file, and serve upon the other parties:-

(a)    by 4.00 pm on 15 April 2015, a list of objections to evidence filed;

(b)    by 4.00 pm on 17 April 2015, a response to any such objections; and

(c)    by 10.00 am on 20 April 2015, a list of objections requiring rulings.

10.At or before 4.00 pm on 16 April 2015, the father, mother and independent children’s lawyer each file, and serve upon the other parties, and email to …, an Outline of Case including:-

(a)    a list of documents relied upon;

(b)    a concise chronology;

(c)    a concise minute of Orders sought if different from those already filed;

(d)    a summary of argument in relation to the legal and factual issues in dispute.

11.The father, mother and independent children’s lawyer each have leave to issue subpoenas for the production of documents.  If a party is represented by a legal practitioner, the Registrar shall, upon certification of the legal practitioners, be satisfied as to relevance.

12.The father, mother and independent children’s lawyer each have leave to approach Registrar Sikiotis to vary the obligations under these Orders to ensure readiness for trial.

13.Notwithstanding the affidavit material that may be filed in this proceedings, by way of compliance with r 19.04 of the Family Law Rules 2004 (Cth) by not later than 4.00 pm on 17 April 2015, the practitioner for each party provide notice in writing to his/her client of:-

(a)    the actual costs incurred by the client up to and including that date;

(b)    any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

(c)    the costs payable for each day of the trial;

(d)    the estimated length of the trial; and

(e)    the date of payments made and the source of the funds for the costs paid or to be paid so that:-

(i)if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

(ii)if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

(iii)if costs have been paid in cash, the details must identify the payer.

14.Contemporaneously with compliance by the practitioner concerned with paragraph 13 of this Order, the practitioner provide to my Associate -  email … - a copy of the notification given to his/her client pursuant to paragraph 6 of this Order AND IT IS DIRECTED that, in accordance with the agreement between the parties, my Associate send a copy of the notification to the other party to the proceedings.

IT IS FURTHER REQUESTED:

15.That the independent children’s lawyer make contact with the child E born … 2004 (“E”) at E’s school, J Primary School, to advise E that the arrangement whereby she was to spend overnight time with her father and brother C born … 2000 (“C”) has been suspended until further order and that the independent children’s lawyer will make some arrangement to meet with E and her siblings within the next 30 days.

16.That the Principal or Proper Officer of J Primary School give effect to this Order by facilitating E’s use of the telephone when the independent children’s lawyer places the call to E.

17.That the Principal or Proper Officer of J Primary School provide to the independent children’s lawyer details of E’s attendance record at school from the commencement of the 2014 school year to date.

IT IS FURTHER ORDERED THAT:

18.Pursuant to s 65DA(2) and s 62B of the Act the particulars and 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 those particulars are included in these orders.

IT IS FURTHER DIRECTED THAT:

19.The minute of proposed consent orders as amended be marked Exhibit “A” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prescott & Sanderson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1306 of 2012

Mr Prescott

Applicant

And

Ms Sanderson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me for the purpose of informing the Court as to the progress of a medical consultation between the child, E, the father and the father’s partner with Dr L, which was due to have taken place on 27 February 2015.  That attendance has already been the subject of orders made by me on an urgent basis.  I’m informed that the appointment between the father, E and Dr L did eventually proceed but with the mother taking E and arriving some 10 minutes late for the appointment.  The mother’s lateness may be explicable in terms of the very many events that occurred on the morning of the appointment.

2. Significantly, the independent children’s lawyer informs the Court that Dr L has reported to her that E is “intensely anxious” about the commencement of overnight time with the father and that she presents as also intensely anxious about the prospect of being separated from the mother and her sister, D, on an overnight basis. The increase in time to include overnight time is pursuant to an Order I made on 30 January 2015. My reasons for decision for the hearing on 30 January appear in case neutral citation [2015] FamCA 162. The independent children’s lawyer informs the Court that Dr L expressed a view that E may well benefit from a referral to see Professor S, the consultant child psychiatrist who currently has care of E’s sister, D. D is a child of precarious mental health.

3. The independent children’s lawyer seeks leave to make an oral application to suspend the operation of the Order which would see the introduction of some overnight time between E and the father to commence this weekend.  I am satisfied that leave should be granted.

4. The father opposes the substantive application.  He wants the overnight time to be introduced in accordance with the Order of 30 January.  He is understandably concerned that orders have been made which provided what he considered to be a constructive way forward and which accorded with a family report prepared in this matter by Ms V. 

5. The family report is a comprehensive and apparently well-reasoned report.  However, it has not yet been tested in cross-examination so I have regard to it as untested evidence.  The father is also concerned that E has been subjected to overt or covert pressure within the mother’s household, either by the mother or by her sister, D.  The father maintains that E had previously indicated to him that she was content to accompany him to see Dr L, but then refused to get out of the car for the purpose of doing so.  The father is concerned that a reiteration of overt or covert pressure has brought about E’s adverse reaction to the prospect of overnight time or any progression towards it.  In this context, E’s appointment with Dr L, the father and the father’s partner was a progression toward overnight time because it was a pre-condition to overnight time commencing. 

6. The father does not necessarily concede that E presented to Dr L in the way that the independent children’s lawyer has relayed to the Court (and Dr L relayed to her).

7. Mr Schmidt, solicitor for the father, has informed the Court that he is instructed that Dr L said the arrangements put in place for the overnight time seem “sufficient and good”.  This may be a miscommunication or a selective communication, but as matters stand there is some doubt. 

8. What I have no doubt about is that the situation of the child, D, is dire, and it appears to me that E is heading down the same path as D.  I recall my discomfort at hearing the submissions put on behalf of the mother during the second-to-last hearing, to the effect that it was necessary for E not to go on overnight time lest it had a deleterious effect on D’s emotional health.

9. There is a pathway for the determination of all parenting issues including interim arrangements.  It is that parenting matters be determined in accordance with the best interests of the child.  I have regard to the legislative pathway to the primary considerations and to various of the additional considerations, including E’s views.  Conservatively, I assess E’s views at this stage as being in line with those as described by the independent children’s lawyer and in doing so I don’t say that the father has been anything other than accurate in his recollection and perception, but I would place greater weight on Dr L’s observation of the child, as reported to the independent children’s lawyer, given the purpose for which Dr L would have been making that communication.

10. It is, I think, most regrettable that the overnight time will not occur at this stage, but I am prepared to accede to the application of the independent children’s lawyer and suspend the operation of the earlier order, so that the overnight time does not occur.  That is not to say that I do not think that E would be cared for appropriately by the father and his partner and C would be there too.

11. I am concerned that E may be subject to pressure to an intolerable degree if the overnight time does occur.  I do not believe that the pressure would emanate from the father’s household.  It would emanate from the mother and D and may be unconsciously imposed by either or both of them.  By this I mean that the mother and D may not be able to control the adverse impact to which, I speculate, E may be subjected under their individual or cumulative influence.  This is relevant to the mother’s capacity to parent which is, of course, one of the additional considerations.

12. I am extremely concerned for E’s wellbeing.  It appears, as I’ve said, she’s going down the same path as her sister, D, whose condition is dire.  In that respect, I’m concerned that there may be no viable appropriate primary carer for E at this stage.  It’s not a concluded view, but it is a possibility that warrants investigation.  This might mean a delay to the final hearing.  However it would be quite inappropriate to embark on a final defended hearing of this case when E appears to be in the early stages of a downward spiral and in precarious mental health. 

13. This is a court of private law.  The dispute to be determined by me will be within parameters set largely by the parents.  E and D have exhibited (to different degrees) rejecting behaviour towards the father.  The mother says that she is helpless and cannot do more for the girls.  D refuses to attend school.  I have heard that she refuses to wear sanitary products when she needs to do so with the result that she cannot or will not leave the house.  E is a child who soils and wets herself.  The mother says that she cannot do more than she does for E.  Based on what the mother says, through her lawyers, I am concerned about the mother’s capacity to parent.  It is important that I do not misjudge the situation but I am concerned that the help and interventions that can be ordered by this Court will not be sufficient for E or D in circumstances where E needs help urgently. 

14. I have not yet had the benefit of hearing from Professor S about D’s prognosis.  At such time as Professor S does give evidence, I will enquire whether he has considered whether D would be best cared for in a psychiatric unit rather than at home.

15. I am going to make a referral, pursuant to s 91B of the Family Law Act1975 (Cth), requesting the Department of Human Services (“DHS”) to investigate this matter.

16. I know that DHS is overworked and under pressure itself.  I wouldn’t make this request lightly.  In making the request, I note that there is a case assessment conference between clinicians involved in the care of D next week.  That’s Professor S, a psychologist, Ms F, who has also treated the mother, and Dr K, who is a general medical practitioner.  It would obviously be preferable if the Department of Human Services was online and seized of the matter prior to the case conference.  I will also direct the independent children’s lawyer to provide Professor S with a copy of this Order, and in due course a copy of these reasons, when they are published.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. After the Order was pronounced, the Court was informed by the mother and her lawyer that E had spent last night in a state of anxiety, had not slept and had been “on the toilet all night”.  Notwithstanding the child’s depleted state, the mother has sent E to school today because (the mother said) “I get into trouble if I don’t send E to school” (or words to that effect). If the mother has sent E to school today when the child was not fit for school, it was a most inappropriate thing to do and, it may be argued, indicates that the mother is prepared to allow E to suffer in preference to being criticised herself.  An indicia of good parenting is that a parent is able to prioritise the child’s needs above their own needs. I have not had the benefit of evidence or submissions on the point.  However, if E was ill today and was sent to school when she was unwell in order for the mother to avoid criticism, that would not be sound parenting.  I am merely hypothesising.  I make no findings.  I have no concluded view but I am relieved that DHS will have some opportunity to investigate E’s welfare and D’s welfare urgently.

2. The final hearing is due to commence before me on 20 April 2015.  If the parties are in doubt as to whether it can proceed, having regard to any assessments which may be in the pipeline from DHS, they should arrange for the matter to be relisted sooner rather than later.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 March 2015.

Associate: 

Date:  12 March 2015