RAITHBY & MOXHAM (No.2)

[2020] FCCA 3605

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAITHBY & MOXHAM (No.2) [2020] FCCA 3605

Catchwords:
FAMILY LAW – Parenting – interim order – short form reasons – psychiatric evidence – family report – supervision approved by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 69ZL

Applicant: MS RAITHBY

Respondent: MR MOXHAM

File Number: BRC 14046 of 2018

Judgment of: Judge Howard

Hearing date: 21 October 2020

Date of Last Submission: 21 October 2020

Delivered at: Brisbane

Delivered on: 21 October 2020

REPRESENTATION

The Applicant attending as a self-represented litigant.

The Respondent attending as a self-represented litigant.

Solicitors for the Independent Children's Lawyer: Smithson Lawyers

ORDERS

1. That any changeovers for the child X born in 2020 (“the child”) shall occur at the playground situated at the B Shopping Centre.

2. That the obligation for Ms C to supervise the mother’s time in accordance with paragraph 1 of the Orders made 19 October 2020 does not apply when the parties are conducting changeovers.

3. That the mother forthwith attend upon her treating General Practitioner for a referral for ongoing counselling with Ms D.

4. That the Independent Children’s Lawyer and the mother be granted leave to provide a copy of the Family Report prepared by Ms E (annexed to the Affidavit filed 19 October 2020) to Dr F and to her treating counsellor, Ms D.

5. That the Mother provide the email address of Dr F to the Independent Children’s Lawyer for the purpose of the provision of the Family Report prepared by Ms E (annexed to the Affidavit filed 19 October 2020).

6. That the Independent Children’s Lawyer be granted leave to provide to Ms D a copy of any material filed in these proceedings.

7. That this matter be adjourned for Mention at 9:30am on 27 January 2021 in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Raithby & Moxham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 14046 of 2018

MS RAITHBY

Applicant

And

MR MOXHAM

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 21 October 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court. These Reasons have to be read in conjunction with earlier Reasons (26 May 2020). Further, these reasons were delivered in short-form in accordance with s.69ZL of the Family Law Act 1975 (“the Act”).

1. The background to this case will be apparent from the earlier Reasons delivered on 26 May 2020.  It seems to me that the involvement of Ms C (the maternal grandmother) at the actual changeovers is such a relatively small component of a supervisor’s role – compared to everything else she has to do – that it is going to cause her too much stress I think it is in the best interests of the boy if we do not require Ms C to go to the changeovers and leave it to the mother and the father.

2. I have got a few more things to say about this case.  That family report writer said – (and this is something I looked at carefully the other day) – the family report writer made the point she was concerned about the mother’s presentation.  She was concerned about the presentation and she said she thought the mother was preoccupied about the father.  That she was still focusing on the father. 

3. Paragraph 10.19 was the paragraph (of the family report) I highlighted the other day and this is from the family report writer (which – and I think I made it an exhibit the other day and if I did not it is an exhibit for today) – and the report writer said:-

   “The question for my consideration at this time is the risks to X while spending time with Ms Raithby on an unsupervised basis until a full psychiatric assessment can be undertaken.  I understand these risks are the basis of Mr Moxham grounds for appeal regarding the orders made on 26 May 2020.”

4. To start with, the court record indicates that the appeal was discontinued - we will leave that to one side, it is not relevant for today’s purposes.  The psychiatric interviews are taking place later this year and I understand the results will be ready by some time in December.

5. So at this point in time there is no full psychiatric assessment by any person appointed by the Court or any person nominated by the Independent Children’s Lawyer.  And the only psychiatric evidence we have is the same psychiatric evidence that was before the Court at the interim hearing that took place in May this year and upon which the Court has already ruled.  And that psychiatric evidence – (which was exhibit 1 on that occasion and I will make it another exhibit today so the record is easy to access) – is the opinion of the psychiatrist Dr F – his name was misspelt in the earlier reasons, it is spelt Dr F – Dr F.  He is a senior consultant psychiatrist.  He is based at Suburb B.  He provided what is called a brief psychiatric report on 21 April 2020.  And for present purposes, the important paragraph is the last paragraph on the first page where Dr F said:

   “Repeated examination confirms Ms Raithby does not suffer from any mental illness or personality disorder.”

6. The points I’m making are these.  These issues that were ventilated at the earlier interim hearing, the Court heard from the parties and the Court gave Reasons for Judgment and issued orders.  One of those orders was the appointment of the Independent Children’s Lawyer who is now involved and who has hit the ground running and has a family report already and has psychiatric assessments coming up soon. 

7. The Court also directed that the Independent Children’s Lawyer interview, in person, Ms C and the Independent Children’s Lawyer has done that, on Monday, and those letters the Independent Children’s Lawyer sent in on Monday and Tuesday to the Court and to which I have referred to earlier, they will also be exhibits here in this hearing today.  And the Independent Children’s Lawyer having done that formed a view that Ms C would be a suitable supervisor.  I was impressed with Ms C’s submissions to the Court on Monday and her evidence given today.  She wants to stay away from changeovers because it is too much stress and frankly having been the docket judge for this family for some months I absolutely understand her predicament and her view. 

8. It is a stressful case.  The parents are at loggerheads.  The issue identified by the family report writer Ms E about the mother being preoccupied with the father was actually something that was touched upon by Dr F.  He said in – (I guess it is part of the fourth paragraph) his letter of 21 April 2020:-

   “I do understand that Ms Raithby still loves Mr Moxham and does not want to deprive him of access to their child but the current situation is destructive.”

9. It will be apparent from the transcript today that I am giving some short form reasons under section 69ZL of the Family Law Act 1975 - short form reasons on the making of an interim parenting order.  It will also be apparent, the history as to what has happened here. 

10. Mr Moxham specifically referred me to some paragraphs in his more recent trial affidavit in relation to risk issues he says concerning Ms C as a supervisor.  I have had regard to his submissions and those particular paragraphs to which he has referred.  There is nothing in that particular material that would lead this court to conclude at this point in time that Ms C is not a suitable supervisor.  For instance, at paragraph 376 of the father’s affidavit filed 23 September 2020 he sets out various complaints against the mother and some against Ms C including, for instance, that the – apparently according to the father, Ms Raithby at some stage said that Ms C was to blame for some incident that occurred in November 2018 and that Ms C had tutored X to make false disclosures of violence.  Now that is at its very highest, it is an allegation by the father that Ms Raithby said something about her own mother.  It is such a long way from allowing the Court to reach a conclusion on Ms C that it is really – it is outweighed by the submission that I have heard and the evidence in the letter from the Independent Children’s Lawyer that her view formed after meeting Ms C is that Ms Raithby does understand the role of supervisor and would be a suitable supervisor.  So the matters to which I have been referred to by Mr Moxham, not only in terms of paragraphs relating to evidence but his submissions also, those matters do not outweigh the submission and the evidence in the form of a letter from the Independent Children’s Lawyer  that Ms C is a suitable supervisor.  I saw there was some reference to the child apparently saying that his grandmother, Ms C, had let him walk outside barefoot on broken glass.  It sounds farfetched. 

11. It seems to me to be rather farfetched that a little boy would say this to his father and his father just believes it.  In any event, even if the boy did cut his foot somehow, the point is how would anyone be able to prove at this point in time that the grandmother knowingly let the child walk on broken glass?  I just don’t accept it in terms of a risk issue.  Especially since I have the Independent Children’s Lawyer who has interviewed Ms Raithby and reached the conclusion to which I have referred.

12. I consider I have given more than adequate reasons for this mention and the decision today. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 27 January 2021