Pritchard and Johnston
[2015] FCCA 3336
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRITCHARD & JOHNSTON | [2015] FCCA 3336 |
| Catchwords: FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – stay of parenting orders – supervision – mother’s time with child on Mother’s Day and child’s birthday to remain the same except to be supervised – allegations of irrational behaviour – need to protect child from physical or psychological harm. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 68B, 68L |
| Cases cited: EMD & FYM [2004] FMCAfam 694 Johnston & Pritchard [2010] FMCAfam 942 Johnston & Pritchard [2011] FMCAfam 1082 Johnston & Pritchard [2013] FCCA 2418 Johnston & Pritchard [2014] FCCA 1996 Johnston & Pritchard [2015] FCCA 1095 L & T [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92-875 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR PRITCHARD |
| Respondent: | MS JOHNSTON |
| File Number: | SYC 4591 of 2008 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 December 2015 |
| Date of Last Submission: | 9 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Paltos |
| Solicitors for the Applicant: | Paltos Milevski Family Lawyers |
| Counsel for the Respondent: | Mr Alexander (direct brief) |
ORDERS
UNTIL FURTHER ORDER
Orders (3), 4(a), (4)(d), (4)(e) and (5) made on 12 October 2011 are stayed.
The Mother is to spend supervised time with the child X born (omitted) 2006 as follows:
(a)During the school term:
(i)Each Monday after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed) at 7:30 pm on that evening;
(ii)Each alternate Friday from after school until 4:00 pm on the following Saturday with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).
(b)During school holiday periods as the parties may agree in writing from time to time subject to the availability of an agreed adult supervisor.
(c)From 9:00am to 5:00pm on Mother’s Day if the child is not otherwise in his mother’s care on that day PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.
(d)From 5:00pm on Christmas Eve until 12:00 noon on Christmas Day 2015 PROVIDED THAT such time must be in the presence of Mr D or another responsible adult agreed by the parties in writing.
(e)For a period of two and a half hours on the child’s birthday from immediately after school with X to be collected from school by Mr D (or another responsible adult agreed by the parties in writing) and returned to the Father’s residence by Mr D (or other responsible adult as agreed).
The mother is restrained by injunction from:
(a)entering or attempting to enter (omitted) Public School from time to time or going within 200 metres of the school;
(b)following the child either from the Father’s residence to school or from the school to the Father’s residence; or
(c)discussing these proceedings with or in the presence or hearing of the child or showing to the child any document connected with these proceedings.
It is a condition of these Orders that the Mother must undertake the following:
(a)subject to such services being available through the public health system attend upon a registered psychiatrist within 14 days of the date of these Orders or such later time as the psychiatrist may appoint and provide the psychiatrist with copies of:
(i)the reports prepared by Dr B for the purposes of earlier proceedings in this Court;
(ii)her prior medical records, including without limitation those held by Dr M and Dr V;
(iii)the Reasons for Judgment of 12 October 2011, 13 February 2013 and 23 July 2014; and
(iv)the affidavit of the father sworn 1 December 2015;
(b)follow all directions and comply with all requirements of the psychiatrist in relation to any psychotherapy and comply with all prescribed medicine regimes recommended by the psychiatrist;
(c)authorise the psychiatrist to provide to the Father information as to her treatment and her compliance with any course of treatment recommended by the psychiatrist including the taking of prescribed medication;
(d)obtain a report from the psychiatrist addressing her ability to care for the child X including if applicable that in the opinion of the psychiatrist she poses no risk of physical or emotional harm whilst the child is in her care;
(e)ensure that the report from the psychiatrist contains an acknowledgement that the psychiatrist has read copies of the reports and medical files and Reasons for Judgment referred to in Order (4)(a) above; and
(f)request the psychiatrist to provide directly to the Father’s legal representative and the Independent Children’s Lawyer when appointed the psychiatrist’s report within seven (7) days of the report being issued.
The interests of the child X born (omitted) 2006 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid NSW is requested to arrange this representation.
Within seven (7) days the parties must forward to Legal Aid NSW at 323 Castlereagh Street Sydney NSW 2000 for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.
The Independent Children’s Lawyer when appointed is given leave to issue up to twelve (12) subpoenas without charge.
The Mother is to provide to the Independent Children’s Lawyer and the Father’s lawyers a list of her current treating medical practitioners and any medication which she has been prescribed within seven (7) days of receiving a request in writing from the Independent Children’s Lawyer and the father’s lawyers.
In accordance with the provisions of section 11F of the Family Law Act 1975 the father and mother are to attend a Child Dispute Conference with a Family Consultant at a time and place appointed by the Director of Child Dispute Services at the Sydney Registry of the Court and as provided by section 11C of the said Act the Conference is to be reportable.
IT IS NOTED that publication of this judgment under the pseudonym Pritchard & Johnston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4591 of 2008
| MR PRITCHARD |
Applicant
And
| MS JOHNSTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy called X to suspend (or stay) a number of the current parenting Orders relating to the child and substitute orders that the Mother’s time with him should be supervised. He also seeks orders that it should be a condition of the orders that the Mother obtain a psychiatric report. The Father seeks orders that:
a)The interests of the child should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth); and
b)The Mother should be restrained by injunction from entering the child’s school or following him from his father’s residence to the school or back again.
The Mother has filed a Response, opposing the Orders sought, and an Application-contravention. However, the Mother’s Counsel, Mr Alexander, told the Court that the Mother was not moving on the contravention Application at this stage.
The thrust of the Father’s case is that the Mother’s behaviour has become increasingly irrational, to the extent that he fears for the child’s safety.
Background
There has been an extensive history of litigation between these parties, going back to 2010, when the child was only four years of age.
On 4th August 2010 Walker FM[1] made interim parenting Orders and appointed an Independent Children’s Lawyer (Johnston & Pritchard[2]). The following year, after a final hearing that took six hearing days (Johnston & Pritchard[3], her Honour made final Orders on 12th October 2011, providing that the child was to live with the Father and spend time with the Mother.
[1] As her Honour then was
[2] [2010] FMCAfam 942
[3] [2011] FMCAfam 1082
The Mother applied to vary those Orders in 2012, but on 13th February 2013 his Honour Judge Altobelli dismissed the Application (Johnston & Pritchard[4]).
[4] [2013] FCCA 2418
The Mother made a further Application the following year. On 23rd July 2014 his Honour Judge Coker dismissed the Application with costs (Johnston & Pritchard[5]). His Honour ordered that the Mother was restrained from initiating further proceedings in relation to the parenting of the child without leave of the Court.
[5] [2014] FCCA 1996
On 30th April 2015 I made an order that the Mother should pay the Father’s costs in the total sum of $21,557.60 (Johnston & Pritchard [6]).
[6] [2015] FCCA 1095
The parties commenced to live together in around (omitted) 1999 and were married in (omitted) 2005. The child X was born (omitted) 2006.
The parties separated on 15th April 2008 and were divorced on 4th August 2009.
The child has been living with the Father since the final orders were made on 12th October 2011.
Evidence and Submissions
The Father relied on his affidavit of 1st December 2015. The Mother relied on the following:
a)her affidavit of 8th December 2015; and
b)the affidavit of her partner Mr D of 7th December 2015.
During submissions, the Mother’s counsel, Mr Alexander, tendered a report dated 7th December 2015 from Dr S, a psychiatrist who has been treating her since 31st July 2013. It was Dr M’s opinion that:
During the time that she was seeing me, I have found nothing that indicated that her son was at risk from her.
It is the Father’s case that the Mother’s behaviour has become increasingly more irrational since 4th November 2015. On that date the parties attended a mediation but the mother became “angry and abusive” towards him and the mediator ended the mediation and escorted the Mother out of the room. However, when the Father went to leave the Mother had been waiting for him and again started to abuse him.[7]
[7] Affidavit of Mr Pritchard 1.12.2015 at paragraphs [18]-[19]
The Father went on to depose that between 4th November and 28th November 2015 he has received a number of abusive and threatening emails from the Mother. On two occasions, 17th November and 20th November, the Mother contacted the Police, who visited the Father’s home to conduct a welfare check on the child.
It is as a result of the Mother’s behaviour that the Father now seeks the orders that he does.
Mr Alexander of Counsel for the Mother submitted that a number of paragraphs of the Father’s affidavit should be given no weight at all. He also submitted that a number of the Mother’s communications did not give rise to any concern about her mental state whatsoever.
Mr Paltos, who appeared for the Father, referred the Court to the decisions of EMD & FYM[8] and L & T[9]in support of the argument that a Court may not make a “free-standing” order for a party to undergo a psychiatric examination but could make such an order as a condition of a parenting order.
[8] [2004] FMCAfam 694
[9] [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92-875
The law to be applied in applications for parenting orders
When a court is considering an application for parenting orders, it must have regard to a number of provisions of Part VII of the Family Law Act 1975 (Cth). In particular, it must have regard to s. 60CA of the Act, which prescribes that the best interests of the child must be the paramount consideration. Section 60CC sets out the way in which a Court determines what is in a child’s best interests. One of the primary considerations that is particularly relevant is contained in s.60CC(2)(b):
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Conclusions
In my view, the need to protect the child from physical or psychological harm is important at this stage, and I note that s.60CC(2A) provides that in applying the considerations in s.60CC(2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Whilst Counsel for the Mother did his best to downplay the significance of some of matters contained in the Father’s affidavit, there are still some concerning aspects.
First of all, it must have been confusing and disturbing for the child to have the Police call at his home on two occasions in four days to conduct a welfare check, for no apparent reason. This does not appear to be rational behaviour on the part of the Mother.
There are some disturbing matters contained in the Mother’s communications with the Father.
Annexed to the Father’s affidavit and marked “D” is an email from the Mother dated 17th November 2015 which says in part:
I am sorry I called the Police to check that X was ok.
I did it because you have harmed him and myself for the last 8 years in every way you can and I seriously fear for his life at times when you get over excited in a negative manner. It’s scary and not rational.
I believe you have some serious psychological and perhaps psychiatric problems which lead you to behave the way you do.
Hence I forgive you for the disgusting things you have done and continue to do. I realise you are sick.
But that makes you dangerous. You clearly don’t want me in my son’s life to punish me and my son for your bitterness. So I am frightened for my son. Not of what you will do to me – you’ve already done it. But the only thing you can do to hurt me now is to hurt my son & you have and are doing it but are determined to keep doing it. I called the Police tonight because I was scared he was hurt or killed.
I am sorry.
I am not playing a game. I am real. Your behaviour is so sick that I believe you would kill him to harm me or X to hurt me. You would not let him call me or would not call me yourself to reassure me he was ok.
So I need to check he is ok.
Please forgive me – there is a good reason for my calls.
Notwithstanding her apology for calling the Police on 17th November, the following day the Mother sent the Father an email saying (in part):
I am worried you are one of those men who kill their children to hurt the Mother. You have hurt him and continue to in every way but that so far, in your attempt to hurt me. Your behaviour has been so irratic[10], out of control, violent, heatless[11] and shocking that I have feared for my life for a considerable period. I also fear for X as a result of your behaviour. I believe you have some serious mental health problems that you need to address.
No one who is well would do the things you have done and continue to do. You frighten people you barely know, not just us.[12]
[10] sic
[11] sic
[12] Affidavit of Mr Pritchard 1.12.2105 Annexure “F”
Again, the Police arrived on 20th November to conduct another welfare check on the child.
The evidence is sufficient to raise a serious concern about the Mother’s mental state and justify the orders sought by the Father. The concerns about the mental state of the Mother are, to my mind, justify the appointment of an Independent Children’s Lawyer under the provisions of s.68L of the Family Law Act 1975 (see Re K[13]).
[13] (1994) 17 Fam LR 537; FLC 92-461
I will order accordingly.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 December 2015
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