Reeley and Deckard

[2020] FCCA 2844

FEDERAL CIRCUIT COURT OF AUSTRALIA

REELEY & DECKARD [2020] FCCA 2844

Catchwords:
FAMILY LAW – Parenting – concerning a nine year old child who has been spending equal time with both parents – whether unacceptable risk of harm to the child – where the mother is alleged to have made a threat of suicide to the child while intoxicated – where the mother denies she made a threat of suicide or that she was intoxicated – where further examination of the issues is required – the child is to live with the father until further order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR REELEY

Respondent: MS DECKARD

File Number: DNC 546 of 2020

Judgment of: Judge Young

Hearing date: 5 October 2020

Date of Last Submission: 5 October 2020

Delivered at: Darwin

Delivered on: 5 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Coonan

Solicitors for the Respondent: Coonan & Coonan Legal

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born in 2010 live with father.

2. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child X born in 2010 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That pursuant to s.11F of the Family Law Act 1975, the parties and the child X born in 2010 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on a date to be advised to the parties , with the parties to telephone the Case Coordinator Child Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the parties attend.

7. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

8. That the matter be adjourned to 27 January 2021 at 2.15pm for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Reeley & Deckard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 546 of 2020

MR REELEY

Applicant

And

MS DECKARD

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning a nine year old child who has been until recently spending, it seems, equal time with his mother and father.  They separated relatively recently.  There was correspondence between the parties in August where the father was proposing a 50-50 shared care arrangement.  According to the father’s affidavit on 13 September (it seems to be an agreed position) that the mother spoke to the child and said: 

   I am going to sleep in the sea and I am not coming back. 

3. The mother goes on in her affidavit to say:  

   I did not intend for this to be any threat of suicide.  I was not intoxicated to excess as Mr Reeley claims. 

4. The mother said that she had had three glasses of wine before she said that.  The child interpreted that as a threat of suicide and rang his older brother in Brisbane and said to his older brother words to the effect “I don’t want mum to kill herself.”  The older brother rang the father who called the police.  The police persuaded the mother to attend the B Hospital where she was examined and after a short time, she was discharged.  The mother said she was assessed by Dr C who said:

   I have assessed her tonight and believe she does not need to be kept in hospital for psychiatric assessment, however, she would benefit from a review and consideration of a referral to see a counsellor on a mental health care plan if she qualifies.” 

   That was from the letter to her treating GP. 

5. The next day on 15 September the GP, Dr D referred her to a psychologist, a Mr E.  In his referral letter Dr D set out a brief history of marriage breakup and says this: 

   1. Seeking help with ETOH [alcohol], uses this to help sleep, as she is stressed, nightmares

   2. Low mood, stress would like to see a counsellor. 

6. Otherwise Dr D noted that she appeared to be well but her mood was low with a low reactive effect or less reactive effect.  She was noted as having no suicidal thoughts, plans or intent at that stage. 

7. Dr D also, on the same day, referred the mother to Alcohol, Tobacco and Other Drugs Services, setting out roughly the history, at least as I am given it, but the reason for referral was said to be:

   Kindly help her with recent excess ETOH [alcohol] use:  She is undergoing separation. 

8. Counsel for the mother told me that, according to her instructions, the mother was not intoxicated when she made the threat of suicide, and I am satisfied that that is how it is to be interpreted.  It has been so interpreted by the child and has never been suggested that the child’s interpretation was incorrect.

9. As I say, counsel of the mother said that in response to my question that the mother was not intoxicated when she said that.  That of course is, in my view, even more concerning if it is correct that she was not intoxicated.  I note the mother’s own affidavit says she was “not intoxicated to excess”, which is a very different thing. 

10. The mother also relied on an affidavit from the psychologist, Mr E.  Mr E said that he has seen the mother.  He saw her twice, via video conference on 29 September 2020 and 4 October 2020.  He sets out his clinical observations.  He says he does not have any issues or concerns with the mother’s capacity to parent her son.  He does not consider there is any risk of the child in her care.  The mother is a loving parent.  She is a fair and firm disciplinary parent.  She has a supportive family, and she does not use illicit drugs.  She is highly protective of her son, concerned about his well-being and she is emotionally impacted by not being able to spend time with her son, and the son would benefit from spending both time with his parents.  As I pointed out to Ms Coonan, counsel for the mother, it is notable that the history given by the mother is not set out from Mr E.

11. For example, the observation that the child would benefit from spending time with both parents, unless it is a statement of the most general kind does not seem to be based on anything and in particular, it is not based on any of the material that I am about to refer to in a moment.  Presumably, whether she is a fair and firm disciplinarian also rests on information given by the mother. 

12. I am not satisfied, particularly given the description of what was said to the child as a “suicidal gesture”, that Mr E has necessarily had the full history of this matter in front of him.  I just don’t know because the affidavit does not tell me, so I am concerned about the weight I should give to that affidavit, and at the moment, I give it limited weight because of the absence of what I consider an appropriate history.

13. The matter that does concern me is, however, the email dated 1 October 2020 to Mr Barry from a Ms G, who as I understand it is a psychologist though her qualifications are not set out as far as I can see.  That will need to be remedied at some point.  When Mr E, the psychologist, saw or made his affidavit on 4 October, that is yesterday, he did not refer to the material from Ms G, and that would have been served on Friday, as I understand it.  The reason why that material was not given to Mr E is unexplained.  However, Ms G, according to the affidavit from the father, was in City H, and was not able to prepare an affidavit in time for court.  This is what she says, relevantly, or rather she agrees with various statements made by Mr Barry:

    5. X [the child] disclosed the following to you:

    a. That Ms Deckard [the mother] drinks to excess on a nightly or almost nightly basis, drinking herself into a state of extreme intoxication. 

    b. On 13 September, Ms Deckard became extremely intoxicated and told X that she was going to kill herself and that it was his fault because “you don’t love me enough” or words to that effect;

    c. That Ms Deckard has emotionally abused X over many months if not years, by telling him that she is going to kill himself [presumably that would be herself], that he would be to blame if she does as he doesn’t love her enough;

    d. That Ms Deckard has also caused X considerable emotional anguish/trauma by denigrating Mr Reeley [that’s the father] to X and discussing Mr Reeley and Ms Deckard’s matrimonial disputes with him.

    e. That when Mr Reeley has not been present, Ms Deckard has hit X across the face and with a wooden spoon.

    I interpolate to add that it is not said when that allegedly occurred.

    f. That X feels safe and secure in Mr Reeley’s presence and has raised no concerns whatsoever about Mr Reeley. 

14. The memo goes on, with Ms G agreeing with the following propositions under item number six:

    a. X is adamant that he does not wish to have any contact with his mother at this time, he does not wish to see her or speak to her or communicate [with] her in any way.  

    b. That X requires counselling/therapy and that it is likely to be a couple of months before he may wish to have contact with his mother. 

    c. That for X to recover emotionally from his trauma, it would be best if he could feel confident that Ms Deckard will not approach, speak or otherwise communicate with him at this time;  and, relevantly –

15. Ms G was invited to agree with those propositions, which she did and she added the following:

    I would like to add that X has told me he has lost all trust for his mum.

16. Ms G further goes on to refer to another incident on 13 September, where the child alleged that his mother said that he didn’t love her enough.

17. Ms G said that she has worked for 16 years as a therapist:

    I have seen many distressed children, but X’s distress was amongst the highest.

18. In the circumstances, I do not propose to make the order that the child spends time with his mother until further order, until there can be some further examination of these issues, particularly the issue of a suicide threat and intoxication. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 19 October 2020