RIVERS & RIVERS
[2020] FCCA 2052
•27 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIVERS & RIVERS | [2020] FCCA 2052 |
| Catchwords: FAMILY LAW – Interim parenting dispute in which both parents seek primary residence – whether mother’s mental health and potential abuse of prescribed medication poses a risk to the children – Interim orders made for children to remain with the father – mother to spend supervised time. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL, Pt.VII |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS RIVERS |
| Respondent: | MR RIVERS |
| File Number: | NCC 1096 of 2017 |
| Judgment of: | Judge Costigan |
| Hearing date: | 22 July 2020 |
| Date of Last Submission: | 22 July 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 27 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ticehurst |
| Solicitors for the Applicant: | Attitude Family Law |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | CDG Law Newcastle Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW (Ms McMullen) |
ORDERS PENDING FURTHER ORDERS:
The children X born in 2011, Y born in 2012 and Z born in 2015 live with the father.
The mother shall spend time with the children at B Contact Centre supervised contact centre and to facilitate such, the parties shall:
(a)Contact B Contact Centre within seven (7) days of the date of these orders and complete all intake procedures as requested by them;
(b)Do all things reasonably necessary so as to cause the children to spend time with the mother for not less than two (2) hours each fortnight, at dates and times as advised by the contact service; and
(c)Pay equally between them the fees as determined by B Contact Centre.
The mother is at liberty to spend time with the children supervised by the C Contact Centre contact centre or D Contact Centre, in accordance with Order 2, until B Contact Centre becomes available and the parties shall pay the fees for that service equally between them.
The mother shall be at liberty to have Facetime or Skype contact with the children on one occasion per week at times agreed between the mother and father and failing agreement, 4:00pm each Wednesday for a period of half an hour.
That in the event that the mother elects to undertake dialectical behaviour therapy (“DBT”), she is at liberty to provide her treating DBT practitioner with a copy of the Child Dispute Conference Memorandum dated 3 July 2020 to her treating psychologist.
The father shall keep Z enrolled at E Day Care,
The father shall within 7 days of the date of these orders attend upon Y’s general practitioner to obtain a referral for a comprehensive paediatric assessment for Y and shall comply with all recommendations made by the general practitioner or paediatrician.
Each party is hereby restrained by injunction from denigrating the other party or a member of their household within the hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Rivers & Rivers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1096 of 2017
| MS RIVERS |
Applicant
And
| MR RIVERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are short form reasons as allowed by section 69ZL of the Family Law Act 1975 (“the Act”) in relation to orders made following an interim hearing on 22 July 2020 of parenting issues between Ms Rivers as the applicant mother (‘the mother’) and Mr Rivers as the respondent father (‘the father’). The parenting issues concern their children, X born in 2011 and aged 9, Y born in 2012 aged 8 and Z born in 2015 aged 5.
Issues
The issues which require determination on an interim basis are where the children are to live and the time they will spend with the non-resident parent.
Evidence
The mother relied upon the following material:
a)The mother’s initiating application filed on 12 March 2020;
b)The mother’s affidavit filed on 12 March 2020;
c)The mother’s notice of risk filed on 12 March 2020;
d)A minute of order proposed by the mother (Exhibit A); and
e)A letter dated 22 July 2020 from Ms F of G Psychologist (Exhibit E).
The father relied upon the following material:
a)The father’s response filed on 16 April 2020;
b)The father’s affidavit filed on 16 April 2020; and
c)The notice of risk filed by the father on 16 April 2020.
The father adopted the minute of order tendered in the case of the Independent Children’s Lawyer. Counsel for the father also provided the Court with a chronology and neither counsel for the mother nor the Independent Children’s Lawyer objected to the Court’s reference to that document as an aide memoire.
The Independent Children’s Lawyer relied upon the following material:
a)A minute of order proposed by the Independent Children’s Lawyer (Exhibit B);
b)Index and Tender Bundle of subpoenaed material (Exhibit C); and
c)The Child Dispute Conference Memorandum to Court prepared by Ms H on 3 July 2020 (Exhibit D).[1]
[1] This memorandum was released to the parties and their legal representatives as well as the Independent Children’s Lawyer at 2pm on 22 July 2020 and then the matter was adjourned for interim hearing at 4pm later that day.
Background
The father is 43 years of age. He lives in Suburb J. He has a partner Ms K who has two children L (10) and M (7). It was unclear whether they live together.
The mother is aged 33. She lives in Suburb N and is employed as a professional.
In 2010 the parties commenced cohabitation.
In 2011 X was born.
In 2012 Y was born.
In 2013 the parties married.
In 2015 Z was born.
In 2015 the father alleges and the mother concedes that she was hospitalised in the O Hospital for 5 days following a deliberate overdose of anti-depressant medication.[2]
[2] Ibid at [65]
In 2016 the father alleges and the mother concedes that she yelled abuse at the father ‘in front of the children while waving a baseball bat at [the father].’[3]
[3] Father’s affidavit filed 16 April 2020 at [84]
In April 2017 the mother was transported by police to City P Hospital pursuant to s22 of the Mental Health Act and detained for 3 days in relation to her anxiety and depression.[4] The mother was also served with a provisional apprehended violence order by police for the protection of the father and the children which provided for no contact.
[4] Mother’s affidavit filed 12 March 2020 at [25]; Tender Bundle, page 5
On 12 March 2017 the parties separated with the father moving out of the home to stay with friends in Town Q.[5]
[5] Father’s affidavit filed 16 April 2020 at [11]
On 12 April 2017 the father filed an initiating application in the Federal Circuit Court at Newcastle seeking interim orders for sole parental responsibility, the children to live with him and spend time with the mother during day time only on alternate weekends supervised by a maternal aunt.
On 20 April 2017 a final apprehended violence order was made against the mother for the protection of the father and the children in terms of the mandatory orders only.[6]
[6] Ibid at Annexure A
On 26 April 2017 the father filed a Notice of Discontinuance. The parties reconciled and the father returned to live in the former home with the mother.
In August 2017 the parties separated and the mother moved out of the former home and into a unit in Town R. [7]
[7] Father’s affidavit filed 16 April 2020 at [14]
In September 2017 the mother attended the father’s residence with the children. The father asked the mother to leave, a verbal argument followed and the father closed the front door. The mother then kicked the door several times causing no damaged. The police were called and spoke to both parties but no further action was taken.[8]
[8] Tender Bundle, page 3
In September 2018 the parties divorced.
On 28 August 2019 the father alleges that he received a telephone call from Y in which he said “Mum scratched and pinched me because I was having an argument with Z”. The father alleges that when Y next came into his care he observed bruises on Y’s arms and torso.[9]
[9] Father’s affidavit filed 16 April 2020 at [87]
On 5 November 2019 the mother voluntarily admitted herself to City P Private Hospital to detox from prescribed medication. The mother remained in hospital until 13 December 2019 during which time the children were in the care of the father.[10] The mother also deposed that she was diagnosed with borderline personality disorder, anxiety and depression. Medical records appearing in the Tender Bundle indicate that the mother was diagnosed with borderline personality traits, substance misuse disorder and chronic pain disorders.[11]
[10] Mother’s affidavit filed 12 March 2020 at [50]
[11] Tender Bundle, page 10
On 22 December 2019 the father alleges that he received a text message from the mother in which she said:
“sick to death of [Z]……she [Z] has been smothering me to death since she was born and I have never had any help. Even when I begged you and told you I was ready to kill myself to get away from it.”[12]
[12] Father’s affidavit filed 16 April 2020 at [74]
In December 2019 the father consulted his general practitioner and was prescribed medication for anxiety and depression. He was also referred to a psychologist at S Psychology.
On 3 January 2020 the father deposes that Y disclosed that the mother had ‘scratched him across the side because he was being silly with Z.’[13]
[13] Father’s affidavit filed
In January 2020 the mother says that the parties reconciled and spent a week together. The mother alleges that the parties argued on 24 January 2020 and the father left the home and returned to his girlfriend. The father alleges that he received several text messages from the mother saying, “I won’t be here much longer so don’t worry about it” and “I am not going through it again. I have taken every single tablet in the house.” The father deposes that X was in his care while Y and Z were with the mother. He took X and over to the mother’s house and found the mother in bed. He said she was alert and so he did not call an ambulance but stayed that night ‘to monitor the situation.’ He deposes that the mother admitted to taking ‘the whole box of ‘Gabbapentin [sic].’[14]
[14] Mother’s affidavit filed 16 April 2020 at [75]-[77]
On 31 January 2020 the mother left the two older boys at home, dropped Z at pre-school before going to work. Z told her pre-school staff that the boys were at home alone and the staff made a notification to the Police. Police attended the mother’s home to conduct a check on the boys. They made a notification to the Department of Communities & Justice. The mother’s evidence is that she had arranged for her sister to come to her home and care for the children but her sister slept through her alarm and arrived after the police. The mother concedes that she left the boys on their own until the arrival of her sister.[15]
[15] Ibid at [64]-[72]
In the evening of 23 February 2020 the mother deposes that Z threw a mobile phone at the mother. The mother then chased Z, caught her and smacked her on the bottom. The mother then shut herself in her bedroom while Z kicked and banged on her door. She later let her in and they both lay down on the bed for a while. When she got up she noticed that Y was on skyping the father. The mother says that she made some comment to the children about the father being at his girlfriend’s house and that ‘he doesn’t give a shit.’ [16] The father deposes that X was in his care when he received a phone call from Y saying that the mother was hitting Z and him and he was hiding. He drove to the mother’s house. Y opened and then walked out the front door. The mother closed it behind him. The father says that Y was crying uncontrollably and said that the mother was beating Z. The father took Y to City P Police Station and officers agreed to undertake a welfare check on Z.[17]
[16] Mother’s affidavit filed 16 April 2020 at [10]-[20]
[17] Father’s affidavit filed 16 April 2020 at [33]-[34]
The mother deposes that the police attended her home and filmed Z with their body cam. They observed a bluish marks on her stomach and the mother told them they were temporary tattoos. No further action was taken by Police.[18]
[18] Mother’s affidavit filed 12 March 2020 at [20]
On 24 February 2020 the father says the boys came into his full-time care.
On 12 March 2020 the mother filed her initiating application seeking a recovery order.
On 16 March 2020 the mother recovered the boys from their school. The father says it was another month before the mother facilitated time with the children.
The father filed his response material on 17 April 2020.
On 5 May 2020 interim orders were made for the children to live with the mother and spend time with the father each alternate weekend from 3pm Friday until commencement of school Monday and overnight on Wednesdays in the intervening week.
On 3 July 2020 the parties attended a child dispute conference with family consultant Ms H. The resulting memorandum reads as follows:
ISSUES IN DISPUTE
1.The allocation of parental responsibility for the children, with each parent seeking sole responsibility, noting poor communication between the parents.
2.With whom the children should primarily live. The father proposes that the children live with him and spend supervised time with the mother. He proposes that after the mother successfully completes treatment for her mental health that the children can live between the parents in a shared care arrangement. The mother proposes for the children to live with her and spend alternate weekends (Friday to Monday) with the father.
RISK FACTORS
Family violence
3.The mother alleges a history of family violence consisting of financial and emotional abuse and control. The mother alleges physical abuse by the father, including being punched in the face and held by the throat, and on one occasion breaking the door off its hinges. The father denies the allegations. He conceded breaking a door off its hinges, however, he said this was to get to the mother after she allegedly attempted suicide, after which ambulance attended.
4.There has been a previous ADVO (expired 19 April 2018) protecting the father and children from the mother. The mother concedes that, at times, her “behaviour has been disgusting and there is no excuse for that.” It is common ground that the mother has attacked the father with a baseball bat and has kicked his door. The mother also reported going to “swipe” the father on one occasion, noting she described this as resistant force. It is agreed that the children have witnessed these incidents.
Child safety and wellbeing
5.The children have experienced family violence and may continue to witness high parental conflict. The parents described emotional and behavioural aspects of each child’s presentation which would highly accord with these experiences.
6.In January 2020 the mother left X and Y home alone and took Z to preschool. At preschool, Z disclosed this and Police were called, who attended and took the older children to the Police station. The mother’s response to this incident is a concern. The mother said she has removed Z from preschool for fear that she “could not trust her being there, they should have contacted me first.” The mother said she would be concerned if Z “said something else” and was misunderstood. The father alleges the mother has changed Z’s day care/pre-school a number of times, and he is unsure why.
7.There are allegations by the father that the mother can be physically abusive/aggressive to the children. He said he has observed bruises and scratches on the children and also that Y has contacted him at times when this has occurred. The mother concedes “smacking” Z and she concedes accidently scratching her on one occasion when washing her hair. The mother also provided information that she “got angry” with Y and Z on the occasion in January 2020 (described in detail in the respective affidavits) when Y called the father and Police attended. The mother concedes that she “acted poorly” at that time.
8.The father alleged that the mother has increasingly used the children in the parental dispute and also becomes angry with them if they discuss the father. The father said the mother has sent messages to the children telling them that the father was not present when they were born as well as reprimanding them for telling the father things. The father said the older children are concerned and confused that they are not permitted (by the mother) to communicate with the father outside of the time they spend with him. The father compared this to the mother’s liberal and frequent communication with the children when they are in his household. He said the mother sends messages and photos to the children at 3am.
9.The father raises concern regarding the children’s alleged liberal and unsupervised access to social media, including that they post videos to YouTube.
Drugs and alcohol
10.There are no reported concerns for excessive alcohol intake or illicit drug use.
11.There are identified concerns that the mother has intentionally overdosed on prescription medication. During one hospital admission the mother said she experienced “toxic shock” from taking Lyrica, which she took in combination with Pristiq. The mother said the amount she took (in excess of what was prescribed) “wouldn’t kill me.”
Mental health
12.The father identified the mother’s mental health as the primary risk to the children. He is concerned for the mother’s potential to harm herself and said that she has poor coping skills. These concerns were supported by information provided by the mother. The mother described experiencing suicidal ideation in the past. The mother described becoming “hysterical” at times and referred to an inability to cope. The mother described experiencing an escalation of these feelings during conflict with the father or when their communication breaks down.
13.It is agreed that the mother has made multiple threats of suicide and that she has made attempts on her life. The father alleges the mother most recently attempted suicide in January 2020, which is denied by her. When discussing her history of suicidal ideation and threats, the mother said that she believes she “is probably just saying it,” but does not have an intention to end her life. There is concern, however, that there may have been a number of attempts made by the mother and periods of inpatient admissions.
14.The mother reports that she was diagnosed with Borderline Personality Disorder (BPD), Anxiety and Depression during a voluntary admission to City P Private Hospital in November 2019. The mother said she currently takes Pristiq antidepressant medication as prescribed. She described a history of “taking stuff on and off as I need it,” and has previously been prescribed Seroquel. The mother described having “multiple mental health plans” historically, however, currently her only service provider is a counsellor from [T Counsellors], who the mother has been seeing since 2017. The mother said it has been recommended to her that she undertakes Dialectical Behavioural Therapy (DBT) but that she is unable to due to costs and needing to work.
The maternal family
15.The mother described her father as an “abusive alcoholic.” She was clear in her recollections of witnessing control and aggression by the maternal grandmother towards the maternal grandmother, which she said continues to date. The mother said the children do spend time with the maternal grandparents, but never when the maternal grandfather is drinking alcohol. The father said that he believed the children should not spend time with the maternal grandfather, however, he believed this to be an issue of discretion for the mother to decide.
ADULT RELATIONSHIPS
16.There appears to be a pattern for the parents to separate and reconcile. The mother identified a pattern of positive communication with the father only at times when they were in an intimate relationship, most recently in January 2020.
17.The parental communication is currently poor, and by email. It is common ground that the mother has “lost it” when communicating with the father in recent times, and that the father has requested to only be contacted for emergencies.
18.There appears to be a distinct lack of communication and cooperation regarding important medical issues for [Y].
19.Both parties are clear that there is no intention or desire for their relationship to reconcile.
ISSUES FOR THE CHILDREN
20.[X] (born in 2011) is the 9y 4m old subject child.
21.[Y] (born in 2012) is the 8yo subject child.
22.[Z] (born in 2015) is the 5y 2m old subject child.
23.The parents provided consistent, and concerning, information regarding the children, including:
o[X] displays significant anxiety and has been referred for psychological intervention.
o[Y] is increasingly withdrawn and quiet and has “shut down” since January 2020
o[Z] displays separation/attachment issues (to each parent, and observed at day care) and dysregulated emotional behaviour.
24.The parents agree that the children, and particularly [X], have witnessed family violence/high conflict in the parental relationship.
25.The parents agree that the multiple changes for the children in the current parenting arrangement is destabilising for them and often resulting in forgetting items for school.
26.The parents agree that [Y] requires paediatric assessment for likely coeliac disease. The parents presented with a distinct lack of co-operation and information sharing relating to this medical matter, and disagreement as to who should be responsible for his medical care.
AGREEMENTS REACHED
27.The parents agree that the children are experiencing too many changeovers in the current parenting arrangement.
FUTURE DIRECTIONS
28.Given the nature of the alleged/identified risks in this matter, including concerns about the mother’s psychological wellbeing and coping, consideration may need to be given to the conditions under which this Memorandum is released.
29.It is noted an Independent Children’s Lawyer has already been appointed.
30.If the information regarding the mother’s mental health is correct, there may be a high level of risk to the children’s safety, development and wellbeing in the current arrangement with the mother. A more thorough assessment of the issues may need to occur. There may also be a degree of risk to the mother in these proceedings, in her coping capacity and in view of a previous pattern of behaviour.
31.It is recommended that the mother engage in an intensive Dialectical Behavioural Therapy (DBT) program to address her mental health issues, before consideration of final orders occurs.
32.It is recommended that [Z] is enrolled into a pre-school and regularly attends there. This is particularly important as [Z] is likely to commence kindergarten in 2021.
33.While [Z] has been primarily cared for by the mother and has a lesser developed attachment with the father, her safety is a priority over maintaining her primary attachment.
34.It is recommended that medical assessment for [Y] occurs as a matter of priority, and that any recommendations made to the parents regarding intervention (including diet) are adhered to.
35.Both parents described reluctance to be involved in these proceedings. Given the risks identified in this matter, it is respectfully recommended that there be close scrutiny of any orders made by consent.
At the interim hearing on 22 July 2020 the mother was represented by Ms Ticehurst of counsel, the father by Mr Duane of counsel and Ms McMullen solicitor advocate appeared as the Independent Children‘s Lawyer. At the conclusion of the interim hearing and pending delivery of this reserved judgment orders pending further orders were made for the children to live with the father.
Mother’s health issues
The mother’s medical records included in the Tender Bundle suggest a family history of anxiety and depression, and a diagnosis of postnatal depression in 2010. On 11 September 2015 that the mother was admitted to U Hospital following ‘deliberate self-poisoning of desvenlafaxine and pregabalin’.[19] The discharge summary refers to the mother’s depression gradually worsening since the birth of Z.
[19] Tender Bundle, page 7-9
In April 2017 the mother was taken by police to City P Hospital under s22 of the Mental Health Act where she remained for 3 days in relation to an exacerbation of her anxiety and depression. On discharge she was referred back to her general practitioner for case management. Two months later she was referred by her general practitioner back to the Region V Mental Health Contact Centre for opinion and management. The triage notes from the centre record the mother with:
Difficulties get out off [sic] bed
Has difficulties going to the shop/leaving the house due to anxiety
Can’t take kids anywhere due to the anxiety, can’t cope
Showers everyday
Hasn’t been cooking regularly. Makes sandwiches for kids.[20]
[20] Tender Bundle, page 129
On 5 November 2019 the mother voluntarily admitted herself to City P Private Hospital to detox from prescribed medication. Hospital records indicate that the mother wished to wean off her Lyrica which she was noted to be ‘abusing 10 x 300mg daily.’ [21] The Discharge Summary states that the mother have been prescribed Lyrica for 7 years for a painful bladder, that 4 years ago she started to abuse the medication ‘pretty much non-stop since. Trialled abstinence but withdrawal intolerable.’[22]
[21] Tender Bundle, page 15
[22] Tender Bundle, page 15
The mother’s evidence is that she checked herself out early because the father was not coping with the care of the children. She remains ‘on the Gabapention, which is another mood stabiliser and nerve pain medication that I am struggling to get off alone.’[23]
[23] Mother’s affidavit filed 12 March 2020 at [54]
Documents produced under subpoena by the Pharmaceutical Benefits Scheme set out the dates on which the mother was prescribed medication and the dates on which she filled the prescriptions. Since February 2020 she has been prescribed a wide range of medication including Gabapentin and desvenlafaxine from a number of prescribing practitioners.
Proposals
The mother seeks interim orders as follows:
1.That the children [X] (born [in] 2011), [Y] (born [in] 2012) and [Z] (born [in] 2015) live with the mother.
2. The child spend time and communication with the father as follows:
a. Each alternate weekend Thursday from 3.00pm to Monday 9.00am commencing 23 July 2020; and
b. In the alternate week by FaceTime Tuesday and Thursday from 6:00pm to 6:30pm.
3.That the mother continues to attend upon her treating psychologist and counsellor, attend all appointments, comply with any prescribed treatment regime and all reasonable directions of such treating expert.
4.The parties will advise and keep the other party advised of their current address and contact details, including the telephone number to be used to communicate with the children within seven (7) days or prior to the children being in their care whichever shall occur first.
5.That the parties shall communicate with one another in a polite and child focussed manner in writing, normally be email or by text message in an emergency.
6.That the parents are restrained from:
a. Using corporal punishment on the children, or allow a third party to use corporal punishment of the children.
b. Discussing the other parent or events in the other parent’s home in the presence or hearing of any of the children or permitting any other person to do so;
c. Involving the children in decisions or discussions about the future living arrangements of the children and the amount of time they spend with the other parent or permitting any other person to do so;
d. Criticising or making derogatory statements about the other parent, their partner or their family in the presence or hearing of any of the children or permitting others to do so;
e. Questioning or conversing with the children about where the children want to live or permitting anyone else to do so;
f. Passing messages to the other parent through the children in any form except,
7.Both parties are restrained from allowing the children to be exposed to family violence during any time that they are in their care and shall immediately remove them from any environment where this is taking place.
The Independent Children’s Lawyer and father seek interim orders as follows:
1. The father have sole parental responsibility for the children.
2. The children live with the father.
3.The mother shall spend time with the children at [B Contact Centre] supervised contact centre and to facilitate such, the parties shall:
3.1Contact [B Contact Centre] within seven (7) days of the date of these orders and complete all intake procedures as requested by them;
3.2Do all things reasonably necessary so as to cause the child to spend time with the mother for not less than two (2) hours each fortnight, at dates and times as advised by the contact service; and
3.3.Pay equally between them the fees as determined by [B Contact Centre].
4.The mother is at liberty to spend time with the children supervised by the [C Contact Centre] contact centre or [D Contact Centre], in accordance with order 3, until [B Contact Centre] becomes available and the parties shall pay the fees for that service equally between them.
5.The mother shall be at liberty to have Facetime or Skype contact with the children on one occasion per week at times agreed between the mother and father and failing agreement, 4:00pm each Wednesday for a period of half an hour.
6.Within 7 days of the date of this order, the mother shall attend upon her general practitioner to obtain a referral to a psychologist for the purpose of undertaking dialectical behavioural therapy, and the mother shall comply with all treatment recommendations made by the general practitioner or psychologist.
7.The mother shall provide a copy of the Child Dispute Conference Memorandum dated 3 July 2020 to her treating psychologist.
8.Each party shall complete the Circle of Security and Tuning into Kids parenting courses.
9.The father shall keep [Z] enrolled at [E Day Care].
10.The father shall within 7 days of the date of these orders attend upon [Y]’s general practitioner to obtain a referral for a comprehensive paediatric assessment for [Y] and shall comply with all recommendations made by the general practitioner or paediatrician.
11.Each party is hereby restrained by injunction from denigrating the other party or a member of their household within the hearing of the children.
12.In the event this Honourable Court reserves judgment, the children are to be brought to the Family Court of Australia Registry at Newcastle on the next listing date half an hour prior to the time of listing of the matter.
The Law
Having considered the most significant issue in this matter, the mother’s mental health, I have to look at the legal principles that I have to consider in coming to a decision in this matter.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975 (‘the Act’).
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the children’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
In applying the primary considerations the Court must give greater weight to the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children of having a meaningful relationship with both of the parents.
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[24] The Court may include[25] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[24] S.60CG(1)(b); see Salah & Salah [2016] FamCAFC 100 at [35]
[25] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
How the Court approaches determination of an interim application such as the present was considered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 (“Goode”).
The steps identified in Goode for an application such as the present are described in paragraph [82] as follows:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
As these were interim proceedings, neither the evidence of the mother nor the father could be tested by way of cross-examination. Accordingly, I am not able to make findings of fact as to the matters in dispute between them at an interim stage.
Primary considerations
The children need to be able to have meaningful relationships with both their father and their mother. However, this must be balanced against the need to protect the children from harm.
While the parties make cross-allegations of family violence, the more significant risk and the one that concerns the father, is that of neglect if the mother were unwell and as a consequence of her mental health is unable to care for the children.
The family consultant Ms H was of the view that the information in relation to the mother’s mental health was correct she represented ‘a high risk to the children’s safety, development and wellbeing in the current arrangement.’
The mother suffers from anxiety and depression. She has been treated over time with anti-depressant and anti-anxiety medications. The evidence as to whether the mother is abusing prescription medication is, at this stage of the proceedings, unclear. The mother admitted herself to hospital in November 2019 in order to address her Lyrica dependency but discharged herself prior to completion of her treatment. Her affidavit evidence is that her general practitioner has recommended ‘diet control’, ‘no alcohol’ and ‘counselling’.[26] The mother was last prescribed Lyrica according to the PBS records in November 2019. However, she continues to be prescribed the anti-convulsant Gabapentin.
[26] Mother’s affidavit filed 12 March 2020 at [53]
The other risk factor is the mother’s ability to cope with the children, her on-off relationship with the father and with life generally. She has been diagnosed with borderline personality traits and medical practitioners have recommended that she engage in Dialectical Behaviour Therapy (DBT). A letter tendered in the mother’s case from psychologist Ms F[27] states that she is treating the mother for anxiety and depression. The psychologist does not state how long she has been working with the mother or the nature of the treatment provided to the mother. The mother provides no information in her affidavit about her treatment with Ms F.
[27] Exhibit E
The mother’s long-term depression and anxiety, evidence of her inability to cope with relationship issues together with the risk that she might lapse into abuse of prescription medication are in my view powerful indicators that the children would be at risk if she was their principal carer.
Additional considerations
The children are aged 9, 8 and 5 years respectively. The Independent Children’s Lawyer advised the Court that she had met with the children on two occasions since her appointment. The Independent Children’s Lawyer described the children are ‘bright’ and ‘aware of the proceedings’.
The boys X and Y have not expressed any views and Z she submits is too young for any wishes she might express to be attributed any weight.
The family consultant observed that the child Z is younger than her sibling and it is likely that her primary attachment is her mother. The boys appear to have a close relationship with the father and were comfortable to tell the father when they were scared by the mother’s more erratic behaviours.
Both parents have been involved in making decisions about the children. There appears to have been few long-term issues since separation. Both parents have shown any willingness to spend time with the children.
There is no evidence by either party as to the payment of child support.
The children have now been in the mother’s primary care for the past three years or so. If they were to live primarily with the father this would require some adjustment by them.
There is no evidence about practical difficulty or expense involved in the children spending time with either parent.
I have discussed the mother’s history as to mental health issues and prescription medication abuse above. It will require further investigation. The mother’s mental health status is the primary reason why the family consultant and the Independent Children’s Lawyer maintain the father is the better option as the primary parent.
The children are aged 9, 8 and 5 but remain very vulnerable. Both parents report that X suffers anxiety and in March 2020 was referred to psychologist Ms W under a Better Access to Mental Health Services plan. Y has also displayed some anxious behaviours but it was unclear whether the March 2020 referral by his general practitioner has been actioned by the parents. School records indicate that he has been distressed in the school setting. He is also to undertake further testing in relation to Coeliac’s disease. The pre-school which Z attends has reported ‘dysregulated emotional behaviour.’
The mother has been committed to having the children in her care but the limitation of her capacity has presented significant difficulties. The father has pursued involvement in the children’s life.
The mother alleges physical abuse including damaging property and a history of emotional and financial abuse on the part of the father. The father denies these allegations.
There was one historical apprehended violence order made on 19 April 2018 which has since expired. On that occasion the mother threatened the father with a baseball bat and kicked a door.
The mother conceded that she ‘acted poorly’ when the Police attended her home in January 2020 and that she ‘got angry’ with Y and Z. The mother also conceded that she ‘smacked’ and ‘accidently scratched’ Z and had difficulty coping with the children’s challenging behaviour.
These are only interim orders and reflect interim arrangements only. The final arrangements for the children will, if required, be determined at the final hearing.
Parental Responsibility
Section 61DA of the Act provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the children or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the children for the children’s parents to have equally shared parental responsibility for the children.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the children to spend equal time with each of the parents. If equal time is not in the best interests of the children or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of the parents.[28]
[28] Section 65DAA
The father and Independent Children’s Lawyer seek an order for sole parental responsibility. The mother’s proposal is silent on the issue.
The family consultant noted that the parental communication ebbs and flows with the status of their relationship but it is currently very poor. However, I do not consider that any order for parental responsibility ought to be made on an interim basis, and as such it is the position under section 61C of the Act that will prevail and the operation of s65DAA of the Act is not triggered.
With whom should the children live?
After considering all the evidence, together with the objects, principles and considerations which must be taken into account in determining the best interests of the children, I find that the independent evidence supports that if the children remain living with the mother, then a risk of harm exists.
The mother has been diagnosed with borderline personality traits which does not currently appear to be the subject of follow-up specialist review or treatment.
The mother continues to be prescribed Gabapentin and does not appear to be actively seeking assistance as to its use or misuse.
The subpoena material supports that as a consequence of the mother’s health issues the children have been placed at risk, with:
a)X and Y being left at home unattended while the mother went to work;
b)Z being withdrawn from daycare and no longer visible in the community as a consequence of staff contacting the police following Z disclosure that the boys were home alone;
c)The mother at times unable to properly supervise the children or provide them with nutritious meals; and
d)The mother self-discharging from hospital against the recommendations of professionals.
As the mother has not been proactive, since the commencement of these proceedings, in obtaining medical advice or treatment as to her anxiety and depression and prescription medication addiction, I find that on the balance of probabilities that there is a risk to the children of incidents occurring as have happened in the past if the children were to remain in her primary care.
The mother should not assume, that in making this decision the Court has dismissed the concerns she has raised in relation to the father.
There are concerns of the father raised by the mother in relation to his mental health that are supported in the subpoena material. He saw his general practitioner in December 2019 and was prescribed medication for anxiety and depression which he ceased after two weeks without consultation. He did attend upon his general practitioner several weeks later for review. He was also referred to a psychologist at S Psychology.
No concerns have been raised by the family consultant as to the father’s mental health or emotional state and the impact that may have on the children.
Whilst the father is by no means the perfect parent, he is, in the interim the preferred parent, as the possible risk to the children is lower if the children are living with the father than the risk to the children if the children are living with the mother, given her health and prescription medication issues.
It is based on this primary consideration and on an interim basis I order that the children live with the father.
What time should the children spend with the mother?
The father and Independent Children’s Lawyer propose that the mother’s time with the children be professionally supervised, at least initially. On an interim hearing, I prefer this more cautious approach, am of the view that unsupervised time should await the outcome of the DBT (which the mother will hopefully pursue) for the following reasons:
a)There is evidence that the children have not been properly supervised in the mother’s care.
b)The father alleges that he has observed scratches and bruises on the children after they have been in the mother’s care and Y has complained to him that the mother has deliberately scratched him.
c)The mother has provided no evidence that she is obtaining assistance with her diagnosis of borderline personality traits.
I therefore find that the mother poses a risk to the children and that on an interim basis it is in the children’s best interest in spending supervised time with the mother supervised by a professional agency.
Additional Orders
I propose to make additional orders in accordance with the proposal of the Independent Children’s Lawyer as follows:
a)Given the current poor co-parenting relationship I will make a mutual non-denigration order.
b)That regular electronic communication between the mother and the children should occur.
c)So that Z may enjoy some predictability and routine in her life and so that she may remain visible within the community, an order that the father maintain her enrolment at E Day Care.
d)An order for the father to obtain a referral for Y to undergo a paediatric assessment.
The mother’s attitude to DBT appears to have been equivocal. I am not inclined to make an order directing the mother to engage a therapist specialising in DBT on the basis that it is unlikely the mother will derive any benefit from such therapy unless she sees a need for it and commits to the therapeutic process. It is therefore, entirely a matter for her whether she chooses to seek out such therapy.
Conclusion
There will be Orders of the Court to reflect this decision.
I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 27 July 2020.
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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