Preston & Darville

Case [2021] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

Preston & Darville [2021] FCCA 1535

File number(s): MLC 6697 of 2016
Judgment of: JUDGE HARLAND
Date of judgment: 7 July 2021
Catchwords: FAMILY LAW – parenting – child aged 7 with special needs – both parents have mental health vulnerabilities – which parent will be better able to facilitate the other’s relationship with the child
Legislation: Family Law Act 1975 (Cth), Part VII, ss 60B(1), (2), 60CA, 60CC(2), (3), 61DA(1), (2), (4), 64, 65D, 65DAA(1), (2), (3), 69ZW
Cases cited:

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Oberlin and Infeld [2021] FamCAFC 66

Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 184
Date of hearing: 22 – 24 March 2021, 31 May 2021
Place: Melbourne
Counsel for the Applicant: Mr Leeton
Counsel for the Respondent: Mr Allen
Counsel for the Independent Children's Lawyer: Mr Tesoriero

ORDERS

MLC 6697 of 2016
BETWEEN:

MR PRESTON

Applicant
AND:

MR DARVILLE

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS THAT:

1.On 4 August 2021 all previous orders be discharged

2.The ICL be discharged in 60 days of the date of these orders.

3.The parties exercise equal shared parental responsibility for the child, namely, X born in 2013 (“the child”).

4.Within 48 hours of the dates of these orders the parties contact Ms Q to arrange for Ms Q to work with X, the mother and the father to create a social story to explain to X the changes to his living arrangements set out in these orders.

5.From 4 August 2021 the child live with the mother.

6.From 4 August 2021 the child spend time and communicate with the father as follows:

(a)Each alternate week from after school on Thursday (or from 3:30pm on non-school days) until the commencement of school on Monday (or 9:00am on non-school days);

(b)For one half of the school term holidays as may be agreed in writing, and in default for the first half from the conclusion of school on the last day of term until 12.00 noon on the middle Saturday of the holidays;

(c)For one half of the long summer holiday as may be agreed in writing and in default on a week about basis commencing in the second week of the summer holiday period, save that the child shall return to the mother’s care by 4:00pm on the third day before school resumes such that the child has two full days with the mother.

7.Unless otherwise agreed, paragraph 5 of these orders are suspended during the following periods and during those suspended periods, the provisions as set out in this paragraph shall apply:

(a)On the child’s birthday during the period from after school (or from 3:30pm on non-school days) until 6:00pm during which time, the child shall spend time with the parent with whom he is not living during that week;

(b)On Father’s Day in each year, the…

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Preston & Darville [2021] FCCA 1535
Case
[2021] FCCA 1535
Decision Date

CaseChat Overview and Summary

In the matter of *Preston & Darville*, Harland J considered orders concerning the parenting arrangements for a child, X, born in 2013. The applicant, Mr Preston, and the respondent, Mr Darville, sought to establish arrangements for X's care and time with each parent.

The court was required to determine whether to make orders for equal shared parental responsibility and to establish a parenting schedule that reflected the child's best interests, considering the parents' respective capacities and the history of mental health issues experienced by both parties. A key issue was the practical feasibility of equal time arrangements given the parents' communication difficulties and the mother's past hospitalisation due to mental health concerns.

Harland J applied the principles of the *Family Law Act 1975* (Cth), including the presumption of equal shared parental responsibility under section 61DA(1) and the considerations for making orders for equal time under section 65DAA(1). The court found that despite communication challenges, the parents could improve their working relationship through counselling. The presumption of equal shared parental responsibility was found to apply, as both parents demonstrated commitment to X's needs. The court acknowledged the ongoing risk of mental health relapses for the mother but was satisfied that her engagement with treatment and support systems ameliorated this risk. The father's mental health issues and potential personality or undiagnosed conditions were also noted, but the court found his commitment to X and proactive engagement with medical practitioners to be significant.

The court made orders for equal shared parental responsibility, with X to live with the mother from 4 August 2021 and to spend time and communicate with the father on an alternate week basis, with specific provisions for school holidays and public holidays. The orders also detailed communication protocols, medical information sharing, and educational involvement, aiming to facilitate co-parenting and ensure X's well-being.

Orders

Orders of the court

MLC 6697 of 2016

BETWEEN:

MR PRESTON

Applicant

AND:

MR DARVILLE

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS THAT:

1. On 4 August 2021 all previous orders be discharged

2. The ICL be discharged in 60 days of the date of these orders.

3. The parties exercise equal shared parental responsibility for the child, namely, X born in 2013 (“the child”).

4. Within 48 hours of the dates of these orders the parties contact Ms Q to arrange for Ms Q to work with X, the mother and the father to create a social story to explain to X the changes to his living arrangements set out in these orders.

5. From 4 August 2021 the child live with the mother.

6. From 4 August 2021 the child spend time and communicate with the father as follows:

(a) Each alternate week from after school on Thursday (or from 3:30pm on non-school days) until the commencement of school on Monday (or 9:00am on non-school days);

(b) For one half of the school term holidays as may be agreed in writing, and in default for the first half from the conclusion of school on the last day of term until 12.00 noon on the middle Saturday of the holidays;

(c) For one half of the long summer holiday as may be agreed in writing and in default on a week about basis commencing in the second week of the summer holiday period, save that the child shall return to the mother’s care by 4:00pm on the third day before school resumes such that the child has two full days with the mother.

7. Unless otherwise agreed, paragraph 5 of these orders are suspended during the following periods and during those suspended periods, the provisions as set out in this paragraph shall apply:

(a) On the child’s birthday during the period from after school (or from 3:30pm on non-school days) until 6:00pm during which time, the child shall spend time with the parent with whom he is not living during that week;

(b) On Father’s Day in each year, the child shall spend time with the father from 9:00am until 6:00pm;

(c) On Mother’s Day in each year, the child shall spend time with the mother from 9:00am until 6:00pm;

(d) During the period in each year from 3:00pm on 24 December until 3:00pm on 26 December and during that period;

(i) The child spend time with the mother from 3:00pm on 24 December until 3:00pm on 25 December in each even-numbered year and from 3:00pm on 25 December until 3:00pm on 26 December in each odd-numbered year;

(ii) The child spend time with the father from 3:00pm on 25 December until 3:00pm on 26 December in each even-numbered year and from 3:00pm on 24 December until 3:00pm on 25 December in each odd-numbered year.

(e) Such further or other times as agreed between the parties in writing

Changeover and Communication

8. The parties shall communicate via a text or email save in the event of an emergency.

9. Where changeover is unable to occur at the child’s school, then parties will effect changeover at location as agreed between the parties, or failing agreement at Suburb B McDonald’s Restaurant.

Medical

10. The parties shall each inform the other immediately (or as soon as is reasonably practicable) of any serious illness or injury sustained by the child whilst in their care and provide particulars of any treatments required or received by the child together with the name and address of the treatment provider and/or location at which that child is hospitalised.

11. Each party shall forthwith notify the other parent of the details of all medical and allied health service provider involved in the child’s care, including any changes to such providers within 48 hours of such change occurring.

12. Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.

Educational Information

13. Each party be authorised to obtain, at their own expense, copies of all school reports, school newsletters, photograph order forms and any other documents or notices normally provided to parents.

14. Each party is permitted to attend all parent/teacher interviews, sports carnivals and any other school activities which parents normally attend. In the event such activities require an allocation of tickets to families, each parent shall be permitted to have one ticket each and otherwise remaining tickets shall be distributed equally between the parents.

15. Each parent is at liberty to provide to the child’s school, a copy of these orders.

Other orders

16. The mother immediately inform the father in the even that she suffers any mental health episode that results in her being hospitalised.

17. The parties use the child’s full name, X, when enrolling or engaging the child with any school, medical or allied health practitioner or in any other situation or circumstance that the child’s name is required.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

It is also credible that at the time neither the mother nor the maternal grandmother understood the mother’s mental health which had not yet been diagnosed. I note that whilst the mother experienced depressive episodes since childhood she was first diagnosed with bipolar disorder in May 2018, shortly before her psychotic episode and hospitalisation. BACKGROUND The parties were in a short relationship from 2012 to 2014. They lived with the maternal grandmother at her home. X was a baby when they separated. The father says during the first 14 months of X’s life, the mother prevented him from seeing X. The mother commenced the first set of proceedings on 18 July 2016. The mother had entered into a relationship with Mr D and wanted to relocate with X to Town E in New South Wales. The parties entered into final consent orders on 2 June 2017, which permitted the mother’s relocation and provided for the father to spend time with X every third weekend. The parties agreed to various other orders including exercising equal shared parental responsibility. The mother moved back to Victoria after her relationship with Mr D ended. At that time, the mother was suffering from poor mental health. DFFH commenced protective proceedings and placed X in the father’s care in June 2018. They ceased their involvement some 6 months later. The father commenced these proceedings on 11 December 2018, seeking that the parties continue to exercise equal shared parental responsibility, X live with him and have supervised time with the mother at F Contact Centre.DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING INVOLVEMENT DFFH first came into contact with the family in March 2013. The risk concerns centred on the mother’s suicidal ideation and thoughts of harming X. DFFH noted that she attempted to commit suicide in March 2013. The case with DFFH was closed in September 2013 as the mother had engaged with support services. The DFFH Court Confidential Report dated 13 August 2018 is Exhibit 2. That document refers to DFFH’s history with the family dating back to 2013. DFFH intervened after concerns were reported about the mother’s unstable mental health and the subsequent risks to X in the mother’s care and as such, X was placed in the father’s care on 12 June 2018. The concerns related to the mother, her mental health and her capacity to care for X. At the time, the mother returned to City G to live with the maternal grandmother after the breakdown of her relationship with Mr D. The mother was hospitalised at the H Centre in June 2018. Upon being interviewed by DFFH workers, she presented as being highly paranoid and unable to understand the impact of her circumstances on X. The mother disclosed instances of family violence experienced in her relationship with Mr D. The mother said it was mainly his mother being violent towards her and not Mr D. The mother says Mr D was not physically violent to her but was controlling and did not like her having contact with family and friends. At the time she made the application to be able to move to Town E with X, her relationship with Mr D was serious and she believed it to be a long-term one. The mother did concede that there was physical altercation between them when they separated and she was an instigator of violence that day. She otherwise denied that Mr D was violent and said his mother was violent towards her. What is also very clear from the chronology is that as her relationship with Mr D deteriorated and broke down, so did her mental health. The relationship ended in June 2018 and within days, she had moved back to City G, DFFH removed X from her care and she was hospitalised.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.CONCLUSION The parties and ICL seek an order for equal shared parental responsibility, despite the parent’s difficulties in communication. The parents can improve their working relationship, including their communication, through counselling. I am satisfied that the presumption should apply. Both parents have shown great interest and commitment to ensuring X’s needs are met. Both parents still have their vulnerabilities. The reality is that it is impossible to discount there being any relapse of the mother’s mental health whether it be a depressive episode or a manic episode. What is important is how that risk is ameliorated and I am satisfied that the mother has shown good insight into her mental health and the importance of remaining engaged in her treatment and relying on the supports that she has from her psychiatrist, psychologist GP and also her mother. The mother has seen the benefit of the difference within herself when properly diagnosed and receiving medication that assists her condition. Even if X was to remain living with his father and spend increased time with his mother, the Court cannot rule out the possibility that the mother will become unwell when X is in her care. That risk simply cannot be eliminated. It is however ameliorated by the supports that the mother has in place which mean it is likely that if the mother’s mental health does deteriorated she will be given appropriate assistance much earlier than what occurred before. It must be remembered that whilst it is clear the mother has suffered from mental health issues since she was a child, the real change appears to have occurred when she was diagnosed with bipolar disorder. The evidence suggests that this only occurred in June 2018. I am unable to accept the father’s evidence that the father’s mental health issues have not been shown to have any impact on his parenting capacity. It seems clear on the evidence that the father has some mental health issues and may have some personality issues or other undiagnosed conditions. The fact that the father has not been diagnosed with ASD is not a critical factor, as a diagnosis or label is less important than the behaviour and attitude. I have no doubt that the father is sincere in his beliefs that he is better placed to care for X. The father has demonstrated his commitment to X and his willingness to step in when the mother was unable to care for him. The father has also shown a commitment and willingness to engage with X’s medical practitioners and to not only follow their advice but to proactively engage with them seeking the best outcomes for X. This is particularly clear after hearing from the experts for both parents and I have no doubt that both parents will continue to do so.

Ratio Decidendi

Legal Principle Established

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