R & C
[2002] FMCAfam 191
•16 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & C | [2002] FMCAfam 191 |
| FAMILY LAW – Mental health – Transfer to Family Court – Mother faced bail conditions forbidding her to have contact with the father and children – Contact with grandparent. |
Family Law Act 1975 s.60B; 65E
Mental Health (Criminal Procedure) Act s.32
Cowling & Cowling (1998) FLC 92-801
Cilento & Cilento (1980) FLC 90-847
Bright and Bright v Bright and Mackley (1995) FLC 92-570
| Applicant: | D S R |
| Respondent: | J M C |
| File No: | NCM 3033 of 2001 |
| Delivered on: | 16 April 2002 |
| Delivered at: | Newcastle |
| Hearing Date: | 16 April 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person: | Mr R |
| The Respondent in person: | Ms C |
ORDERS
That until further order, I make the following orders:
That order 1(b) made on 17 January 2002, should be varied by deleting the words: “at the home of LH in G commencing on
20 January 2002”.By deleting order (2) made on that date and by inserting a new, I'll call it order 2(a), which will provide as follows:
The grandparents shall ensure that at all times one or other of them should be present when the children, or either of them, is in the presence of the mother, JMC, and each grandparent is to ensure that one or other of them supervises any contact between the mother and the children.
I also propose to make an order relating to the mother, that the mother is to comply with all directions of her medical advisers and take such medication and other treatment as is prescribed for her.
I note that this matter is expected to take more than two hearing days to hear to finality.
I transfer these proceedings to the Family Court of Australia at Newcastle and I request that the Family Court should list this matter for appropriate directions at an early date.
I require a transcript of my reasons for this decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 3033 of 2001
| D S R |
Applicant
And
| J M C |
Respondent
REASONS FOR JUDGMENT
It is certainly clear that this is a matter that could not have commenced to be heard on a final basis today. The documentation filed by the mother, albeit very recently, has raised a number of issues concerning not only her mental health, but of the treatment thereof and of her future behaviour.
Clearly, these are issues that will need to be explored, not on the run, but in a final hearing. I am certainly of the view that a final hearing when it commences would be likely, in and indeed highly likely, to exceed two days in length. There would be of necessity a need to examine psychiatric evidence relating to the mother's mental health and of the appropriate treatment and the prognosis.
Mr Sundstrom for the mother puts that the mother had been clearly ill for some years and has only recently been diagnosed, which is not unknown in cases of bi-polar affective disorder. Clearly, this evidence takes a little while to accumulate and it also takes a while to bring out to the satisfaction of the Court. I will be making orders transferring the proceedings to the Family Court of Australia, as I believe that that Court is the more appropriate venue.
Regrettably that may lead to some delay in bringing the matter on for hearing, but the very advent of this psychiatric evidence from
Dr Bettesworth means that a delay is necessary in order that evidence can be examined, met and if necessary, challenged. What has happened since interim orders were made on 17 January, apart from the mother's re-entering these proceedings, has been a change to the bail situation relating to the criminal proceedings facing the mother in the G Local Court.
When the matter was before this Court on 17 January 2002, the mother was in a position where she faced bail conditions forbidding her from coming into contact with the father and the two children who reside with the father. There had been supervised contact arrangements through the M R C in G, which had been terminated by that Centre due to the mother's behaviour. Of course, the mother is now saying that that behaviour was as a result of a undiagnosed mental illness.
So, the orders which were made and clearly the Court was mindful of the bail conditions and the pending criminal proceedings, provided for contact between the two children and the intervening grandparents. It has been put to me that in fact the younger child, A, had actually lived with the grandparents for a considerable period of time. But the orders were made in the knowledge apparently that the mother was living with the grandparents and the orders provided that the mother should have no contact with the children whatsoever, in effect, that the contact exercised by the grandparents was to take place at the home of one L H, an aunt, actually in G.
There were also orders for telephone contact. Apparently they started off a little bit shakily on the affidavit evidence, but are now proceeding smoothly.
The situation is that as a result of proceedings in the G Local Court yesterday, the learned Magistrate has dispensed with the bail, and he indicates that, subject to certain things taking place through the Community Justice Centre, that it would be his intention to deal with the matter by way of section 32 of the Mental Health (Criminal Procedure) Act. That may not happen, of course, and events will tell in due course.
The situation is at the moment that the grandparents are seeking an extension of the contact orders made on 17 January. They seek, in fact, that the orders be varied in two significant ways.
One, that there should be overnight contact on alternate weekends and on the Wednesday afternoon, so the contact would extend to the following day.
Two, they seek orders removing the requirement that the children not be brought into contact with their mother and that the contact can take place at their home where the mother resides, rather than at the home of L H.
The mother seeks her own orders, and these orders are that there should be contact on the other weekend, such contact being supervised by her parents.
In effect, if the Court were to grant those two applications, the Court would be making two interlocking sets of contact orders in one of which the grandparents were the contact parties, with the mother permitted to be present at the time, the other in which the mother was the contact party with the grandparents acting as supervisors.
Whilst the legal status of those interlocking sets of orders may be different, it appears to me that the practical effect of those two sets of orders would be the same.
For the father, Mr Hamilton raises the concerns that the mother's psychiatric condition and prognosis is still an un-tested issue, and that overnight contact at the grandparents' home is still a matter of concern. The father still has some doubts as to the ability of the grandparents in respect of supervising on an overnight contact point of view.
Mr Hamilton, for the father, submits that the current arrangements are working well. They are arrangements of some stability, the children are seeing and speaking to their grandparents regularly, the parties derive pleasure from this arrangement, and why, on an interim basis, would there be a justification in changing these arrangements prior to a final hearing.
Mr Bateman, for the grandparents, has pressed on me authority from the Family Court Bright and Bright v Bright and Mackley (1995) FLC 92-570 about the importance of relationship between children and grandparents, as showing the children that they are, in fact, part of a wider family, a wider extended family, and I am of a view, with the greatest of respect to the late Treyvaud J, that that was a decision of great wisdom. It is a decision which is not binding on this Court, but certainly persuasive, and I am of the view that I find that decision persuasive in the course of events.
It is, of course, one of the principles under the Act, under s.60B, that children have a right of contact with parents and with other people, who are important to them. This includes estranged parents and grandparents. This is subject, of course, to the over arching principle that the Court must act in the best interests of the children as set out in section 65E of the Act.
I am mindful, too, of the strictures of the Full Court of the Family Court in a line of decisions going all the way from Cilento through to Cowling and beyond, of the need for there to be stability in children's lives until the long term arrangements are worked out, and that stability is usually brought about by the preservation of arrangements that seem to be working if they are not seen to be not in the best interests of the children.
There does not appear to me, to be on the pleadings, anything which would indicate to the Court that contact with the grandparents should not continue and should not continue on a regular basis. So far as the mother is concerned, I am of the view that the application which she brings, which would, in effect, double the amount of contact, is overly ambitious at this stage. The mother has not seen the children since November and it certainly is a heartbreaking situation for a mother not to have contact with the children at all, in fact, to be a party to orders forbidding her from having contact with the children. Indeed, it is put that the children express some wish to see their mother, and it must be equally heartbreaking for them.
It is indeed a rare case where a Court exercising the jurisdiction of the Family Law Act makes orders on any lengthy basis barring contact completely. If there is a concern about the well-being of the children and I am of a view that there are certainly grounds for some concern about the well-being of the children in the light of the mother's history of unfortunate behaviour, and in many cases supervision of contact is seen as an appropriate step.
I am aware of the fact that supervision was attempted through a Contact Centre, and the father quite properly, as far as I understand, consented to that, but that arrangement did not work out due to the mother's inappropriate behaviour and the Centre withdrawing it's consent to being part of it.
The situation, appears to have changed in the light of the diagnosis that has now been given and steps which can be taken to ensure that the mother receives treatment for the mental illness that has been diagnosed. It is certainly too early to say that that's going to be successful or not.
Quite clearly, the MRC would be reluctant at this stage to accept contact arrangements again, but in view of the recent diagnosis and the treatment being undergone and in view of the dispensation of bail conditions by the learned Magistrate at G Local Court, I consider that the restriction on the children being brought into contact with their mother should be removed.
The situation is that the mother is living at the grandparents' home and it can only be that an arrangement where contact can't take place at their home unless the mother moves out, is of itself an awkward and unnatural situation. The evidence appears to be that the children have a lifelong, for them, history of contact with the grandparents. They would know the home and it would be an unusual situation for them not to be allowed to go to their grandparents' home because their mother was there.
I am certainly not of a view that the mother should have unsupervised contact with the children, and indeed, I am not prepared at this stage to make any specific order guaranteeing the mother contact with the children at all. I am prepared, however, as I said, to withdraw the restriction on contact taking place at the grandparents' home and on contact having to take place not in the presence of the mother.
As far as the amount of contact that is sought is concerned, I am concerned that that is too much of a change and I am not prepared at this stage, on the basis of the evidence before me, to make an order providing for overnight contact.
I would think that the appropriate thing to do over the next short period of time is to see how contact can work at the grandparents' home and to see how contact can work with the mother taking appropriate medication and taking medical advice, being supervised in her contact by the grandparents.
If it turns out that things do not go as well as the mother and her parents would hope, then, of course, there may be a need to re-impose these restrictions. So, whilst I do not propose to extend the amount of contact at this stage, I do propose to allow that contact takes place at the grandparents' home and that contact can take place in the presence of the mother, but that it should be the fact that the grandparents should not leave either child in the presence of the mother without one or other of them supervising that contact.
I propose also to transfer the matter to the Family Court of Australia, with a view to orders being made in that Court as far as the ordering of whatever reports are considered to be appropriate for the purpose of hearing the matter in that Court.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 13 October 2003
0
0
0